The violations under the EAR

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1. What part 764 covers

Part 764 of the Export Administration Regulations (EAR) specifies the conduct that violates the Export Control Reform Act (ECRA) or the EAR, and the sanctions that may follow (15 CFR 764.1). Antiboycott violations are described in part 760, and the violations and sanctions in part 764 also apply to them unless stated otherwise. The part describes administrative sanctions the Bureau of Industry and Security (BIS) may impose, criminal sanctions a court may impose, and other sanctions. It also explains how to report and disclose violations and the protective measures BIS may take.

2. Prohibited conduct and causing a violation

No person may engage in a transaction or take any action that ECRA, the EAR or any order, license or authorization under them prohibits, or that is contrary to them (15 CFR 764.2(a)). Nor may anyone refrain from a transaction or action that ECRA, the EAR or such an order, license or authorization requires.

No person may cause, aid, abet, counsel, command, induce, procure, permit or approve a prohibited act or the omission of a required act (15 CFR 764.2(b)). No person may solicit or attempt a violation (15 CFR 764.2(c)). And no person may conspire or act in concert with others, in any manner or for any purpose, to bring about a violation (15 CFR 764.2(d)).

3. Acting with knowledge of a violation

Paragraph (e) turns on knowledge (15 CFR 764.2(e)). No person may deal with an item subject to the EAR knowing that a violation has occurred, is about to occur or is intended in connection with it. The listed dealings are ordering, buying, removing, concealing, storing, using, selling, loaning, disposing of, transferring, transporting, financing, forwarding or otherwise servicing the item, in whole or in part (15 CFR 764.2(e)). The rule reaches items that have been, are being or are about to be exported, reexported or transferred. It also covers conducting negotiations to facilitate any of those activities.

4. Misrepresentation and concealment

No person may make a false or misleading representation, statement or certification, or falsify or conceal a material fact, directly to BIS or another U.S. agency or indirectly through another person (15 CFR 764.2(g)(1)). The rule applies in the course of an investigation or other action subject to the EAR (15 CFR 764.2(g)(1)(i)). It applies in preparing, submitting, issuing, using or maintaining any export control document or required report (15 CFR 764.2(g)(1)(ii)). It also applies for the purpose of, or in connection with, an export, reexport, transfer or other activity subject to the EAR (15 CFR 764.2(g)(1)(iii)).

All representations, statements and certifications are deemed continuing (15 CFR 764.2(g)(2)). A person who made one must notify BIS and any other relevant agency in writing of any change in a material fact or intention. The notice is due immediately on receiving information that would lead a reasonably prudent person to know such a change has occurred or may occur.

5. Evasion, records, alteration and denial orders

No person may engage in a transaction or take any action with intent to evade ECRA, the EAR or any order, license or authorization (15 CFR 764.2(h)). No person may fail or refuse to comply with a reporting or recordkeeping requirement (15 CFR 764.2(i)). Except as the EAR or BIS in writing allow, no person may alter any license, authorization, export control document or order (15 CFR 764.2(j)). And no person may take any action prohibited by a denial order or a temporary denial order (15 CFR 764.2(k)).

6. Reporting a violation

A person who learns that an export control violation has occurred or may occur may notify BIS’s Office of Export Enforcement (15 CFR 764.4(a)). For antiboycott violations under part 760, the notice may go to the Office of Antiboycott Compliance. The rule warns that failure to report potential violations may lead to the unwarranted issuance of licenses, or exports made without required licenses, to the detriment of U.S. interests (15 CFR 764.4(b)).

These reporting provisions are not reporting requirements for purposes of the recordkeeping and reporting violation (15 CFR 764.4(c)). Reporting rules for items that may have been illegally exported or reexported to Libya before the embargo was lifted are in a separate section (15 CFR 764.4(d)).

7. Protective administrative measures

Separate from sanctions, BIS may take protective administrative measures (15 CFR 764.6). All license exceptions are subject to revision, suspension or revocation (15 CFR 764.6(a)). All licenses are subject to revision, suspension or revocation (15 CFR 764.6(b)). BIS may issue a temporary denial order when it is necessary in the public interest to prevent an imminent violation (15 CFR 764.6(c)). It may also deny the export privileges of any person convicted of an offense specified in section 11(h) of the Export Administration Act (15 CFR 764.6(d)).

8. Where other parts point to these violations

Other parts of the EAR tie into these rules. The Electronic Export Information filing is an export control document, and false statements on it may violate the misrepresentation rule (15 CFR 758.1(f)). A license obtained through a false or misleading representation, or a falsified or concealed material fact, is void as of issuance (15 CFR 750.7(a)(2)). A person subject to a denial order based on a conviction under specified statutes may not apply for any license for up to 10 years (15 CFR 748.4(c)).

9. The scope of the list

The violations reach prohibited conduct, causing or helping a violation, and dealing with an item knowing a violation is involved (15 CFR 764.2(a), 15 CFR 764.2(b) and 15 CFR 764.2(e)). They cover statements to any U.S. agency, not only BIS (15 CFR 764.2(g)(1)). And they include failures, such as not keeping required records (15 CFR 764.2(i)). The sanctions are covered in penalties for export violations.

Key terms

ECRA	The Export Control Reform Act of 2018.
Causing a violation	Aiding, inducing or approving a prohibited act or omission.
Acting with knowledge	Handling an item knowing a violation is tied to it.
Continuing representation	A statement that must be updated when facts change.
Evasion	Any action taken with intent to avoid the rules.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Compliance discipline protects every party in a controlled supply chain. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.