[Federal Register: August 4, 2006 (Volume 71, Number 150)]
[Rules and Regulations]
[Page 44189-44190]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04au06-6]
[[Page 44189]]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 764
[Docket No. 060721198-6198-01]
RIN 0694-AD74
Revision and Clarification of Civil Monetary Penalty Provisions
of the Export Administration Regulations
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: This final rule amends the Export Administration Regulations
(EAR) to clarify the civil monetary penalties that BIS may impose for
violations of the EAR during periods when the EAR are continued under
the Export Administration Act, of 1979, as amended, the International
Emergency Economic Powers Act, as amended, or other statutory
authority. BIS is revising the EAR to reflect amendments to the
International Emergency Economic Powers Act made by the USA PATRIOT ACT
Improvement and Reauthorization Act of 2005.
DATES: This rule is effective August 4, 2006.
FOR FURTHER INFORMATION CONTACT: Melissa B. Mannino, Chief, Enforcement
and Litigation Division, Office of Chief Counsel for Industry and
Security, Telephone: (202) 482-5301 or E-mail: MMANNINO@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
The Export Administration Act of 1979, as amended (EAA), which
provided authority for promulgation of the EAR, included a date on
which it would lapse. The EAA has lapsed and been renewed several times
since its original enactment. At each lapse, the President has used his
authority under the International Emergency Economic Powers Act (IEEPA)
to continue in effect the EAR to the extent permissible by law. The
most recent lapse of the EAA occurred on August 21, 2001. To address
that lapse, the President, acting pursuant to IEEPA, issued Executive
Order 13222 of August 17, 2001, which continued the EAR in effect. To
keep the EAR in effect pursuant to IEEPA, the President has issued
annual declarations stating that the emergency necessitating
implementation of the EAR is continuing. Executive Order 13222 states,
in part, that ``* * * all orders, regulations, licenses, and other
forms of administrative action issued, taken, or continued in effect
pursuant [to the EAA], shall remain in full force and effect as if
issued or taken pursuant to this order, except that the provisions of
sections 203(b)(2) and 206 [penalties] of [IEEPA] (50 U.S.C. 1702(b)(2)
and 1705) shall control over any inconsistent provisions in the
[EAR].'' Further, prior to the date of publication of this rule, the
EAR provided that ``[i]n the event that any part of the EAR is not
under the authority of the EAA, sanctions shall be limited to those
provided by such other authority, but the provisions of this part and
of part 766 of the EAR shall apply insofar as not inconsistent with
that other authority.'' (15 CFR 764.3(a) n.1).
Prior to publication of this rule, Sec. 764.3(a)(1)(i) of the EAR
provided for imposition of monetary penalties authorized by the EAA as
amended, i.e. a maximum of $100,000 for violations involving national
security controls imposed under section 5 of the Export Administration
Act of 1979 as amended and a maximum of $10,000 for any other
violation. However, since August 21, 2001, the date of the most recent
lapse of the EAA, civil monetary penalties for violations of the EAR
have been governed by the penalties set forth in the IEEPA, as adjusted
by Department of Commerce regulations issued pursuant to the Federal
Civil Penalties Inflation Adjustment Act of 1990. The adjusted maximum
amount was $11,000. On March 9, 2006, H.R. 3199, the USA PATRIOT ACT
Improvement and Reauthorization Act of 2005, was enacted (Public Law
109-177) and amended Section 206 of the International Emergency
Economic Powers Act to raise the maximum civil monetary penalty to
$50,000 per violation. Due to this increase in penalties, BIS is
amending the EAR to clearly set forth the maximum civil monetary
penalties it may impose for violations of the EAR. Hence, effective
March 9, 2006, the increased IEEPA maximum civil monetary penalty of
$50,000 applies to any violation of the EAR or any license, order or
authorization issued thereunder that occurs when the EAA is in lapse
and IEEPA is the authorizing statute.
Changes Made by This Rule
This rule replaces the language in Sec. 764.3(a)(1)(i) that
referred to the specific civil monetary penalty amounts authorized by
the EAA with more general language explaining that a civil monetary
penalty authorized by the EAA may be imposed, and in situations in
which any provision of the EAR is continued by IEEPA or other
authority, the maximum monetary civil penalty is that which is
authorized by the applicable authority. This rule also removes the
footnote to Sec. 764.3(a) because the clarification to Sec.
764.3(a)(1)(i) obviates the need for the footnote.
Effects of These Changes
The changes made by this rule provide that BIS may impose civil
monetary penalties in the amount authorized by Public Law 109-177 which
amended section 206 of IEEPA, among other laws. These changes clarify
the source of authority for civil monetary penalties for violations of
the EAR when the EAA has lapsed and the maximum amount of such
penalties. This rule results in an explicit statement in the EAR that
when any provision of the EAR is continued by IEEPA or other authority,
the maximum civil monetary penalty is that which is authorized by the
applicable authority. Therefore, for any violations of the EAR or
license, order or authorization thereunder that occur on or after March
9, 2006 when the EAA is in lapse and IEEPA is the authorizing statute,
BIS may impose a civil monetary penalty of up to $50,000 per violation.
Rulemaking Requirements
1. This rule has been determined to be not significant for the
purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is
required to respond to nor be subject to a penalty for failure to
comply with a collection of information, subject to the requirements of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number. This rule does not
contain any collection of information that is subject to the Paperwork
Reduction Act.
3. This rule does not contain policies with federalism implications
as this term is defined in Executive Order 13132.
4. The Department finds that there is good cause under 5 U.S.C.
553(b)(B) and 5 U.S.C. 553(d)(3) to waive the provisions of the
Administrative Procedure Act requiring prior notice, the opportunity
for public comment and 30-day delay in effectiveness. The changes made
by this rule make clear that BIS may utilize any applicable statutory
authority to impose civil penalties. Because the increase in IEEPA
civil monetary penalties enacted in Public Law 109-177 became effective
on March 9, 2006, BIS is revising the civil monetary penalty provision
of the EAR
[[Page 44190]]
to conform with the statutory change and to avoid confusion as to what
the actual maximum civil monetary penalty is, and therefore notice and
public comment concerning this rule are unnecessary.
Because notice of proposed rulemaking and opportunity for public
comment are not required to be given for this rule under the
Administrative Procedure Act or by any other law, the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable.
List of Subjects in 15 CFR Part 764
Administrative practice and procedure, Exports, Law enforcement,
Penalties.
0
Accordingly, part 764 of the Export Administration Regulations (15 CFR
parts 730-774) is amended as follows:
PART 764--[AMENDED]
0
1. The authority citation for part 764 is revised to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August
2, 2005, 70 FR 45273 (August 5, 2005).
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2. In Sec. 764.3, revise paragraph (a)(1)(i), remove footnote number
1, and redesignate footnote 2 as footnote 1, to read as follows:
Sec. 764.3 Sanctions.
(a) Administrative.
(1) Civil monetary penalty.
(i) A civil monetary penalty not to exceed the amount set forth in
the EAA may be imposed for each violation, and in the event that any
provision of the EAR is continued by IEEPA or any other authority, the
maximum monetary civil penalty for each violation shall be that
provided by such other authority.
* * * * *
Dated: August 1, 2006.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. E6-12653 Filed 8-3-06; 8:45 am]
BILLING CODE 3510-33-P