CBP Updates Mitigation Guidelines for Export Control Seizures

CBP updated its mitigation guidelines for export control seizures to include new mitigating factors, aggravating factors, a new list of remission terms and the elimination of the terms “technical violations” and “substantive violations,” CBP said in its updated July guidelines. In previous years, CBP distinguished between technical and substantive violations but said in its most recent guidelines that the terms were “confusing and misleading” to both CBP officers and the public because they were not used by other licensing agencies.

CBP said a violation that may appear technical may actually be “significant and egregious.” To fix the confusion, the agency is “adopting the same remission amount ranges for all violations, with guidance that the remission amount for violations that are ‘License Violations’ and violations that are egregious in nature should generally be at the higher end of the range.” CBP said the remission amount for non-license violations should “generally be at the lower and middle of the ranges.”

CBP also expanded its list of mitigating factors to include: “exceptional cooperation with CBP,” “clear documentary evidence of remedial measures undertaken to prevent future violations,” “the party has provided substantial assistance in the investigation of another person” and “the party demonstrates that it has an active systematic export compliance program.”

New aggravating factors include: “circumstances suggest the intentional nature of the violation,” “several violations in the same export transaction,” “high number of violations in preceding 3-year period,” “the party exhibits a pattern of disregard for its responsibilities under U.S. laws and regulations,” and “the party exports as a regular part of its business, but lacked an active systematic export compliance effort.”

CBP included a new section for remission terms that say the agency may “remit the forfeiture and release property” that has been seized for export control violations if certain conditions are met. CBP said those conditions include: full payment of all seizure costs, a submission of an executed Hold Harmless Agreement, the goods must be “brought into compliance” or exported under CBP supervision, the goods must meet all export requirements if they are to be released for export, and a “forfeiture remission amount” must be paid.

CBP also introduced new calculations for ranges for remission amounts. For a non-aggravating first offense, violators must pay between 10 percent and 30 percent of the export value of the seized goods but no less than $500, or the export value of the goods if it is less than $500. For a non-aggravating second offense, violators must pay between 30 percent and 50 percent of the export value of the goods but no less than $1,000, or the export value of the goods if it is less than $1,000. For third or subsequent offenses, violators must pay between 50 percent and 80 percent of the export value of the goods but no less than $1,500, or the export value of the goods if it is less than $1,500.

For first offenses with aggravating factors, violators must pay between 30 percent and 50 percent of the export value of the goods but no less than $1,000, or the export value of the goods if it is less than $1,000. For second and subsequent offenses with aggravating factors, violators must pay between 50 percent and 80 percent of the export value of the goods but no less than $2,500, or the export value of the goods if it is less than $2,500.