On October 14, 2016, the Office of Antiboycott Compliance joined the 21st century and issued a Final Rule that permits electronic submission as an additional method to report requests to take certain actions in furtherance or support of an unsanctioned foreign boycott (“Antiboycott requests”), as required 15 CFR Part 760 of the Export Administration Regulations (the “EAR”).
However, if you visited the OAC Web page immediately after the Final Rule was published, the electronic submission feature was not yet live. Now it is.
US persons can now submit the reports electronically through the OAC Web page by following this link here. According to the Final Rule, once all required fields are completed and the report has been submitted electronically, an electronic “Submission Confirmation” notification, confirming the date and time of receipt of the submission by OAC, will automatically be displayed on the reporting person’s screen. Additional guidance on accessing and completing electronic reports is also available on the OAC Web page.
The EAR requires US persons to report requests they have received to take certain actions to comply with, further, or support an unsanctioned foreign boycott. A “request” is broadly defined and covers any communication, oral or written, which has the effect of furthering or supporting a boycott (e.g., “certificate of origin covering goods originating in Israel is not acceptable”). There are, however, certain exceptions to the reporting requests.
Under the EAR “US person” is defined broadly. It includes “domestic concerns” and “controlled in fact foreign subsidiaries, affiliates or other permanent foreign establishments of domestic concerns.” For example, a French company that is majority-owned by a US company would be considered a “US person” and be required to submit reportable requests. A request is reportable if it is received in connection with a transaction that is in the interstate or foreign commerce of the United States. Certain boycott-related requests may be reportable even if they do not relate to a particular transaction. For example, if a company that is a “US person” anticipates doing business in a boycotting country and receives a general boycott questionnaire, receipt of such a questionnaire would be reportable.
The reporting requirements are comprehensive and vary depending on the particular facts of the request, such as when the request was made and who received the request. Failure to report requests can result in significant fines.