In my opinion governments, both the UK and the USA, would best serve entrepreneurs and the business community by publishing more easily accessible compliance information, AND by better training their staff.

This firm disclosed its exports voluntarily which indicates good faith. That they were slapped with a fine of this magnitude is an example of the anti-business environment rapidly pervading Western governments.

The draft documents are reviewed by BIS’s Administrative Case Review Board (ACRB) before they are issued. The ACRB is made up of the Deputy Assistant Secretary for Export Enforcement, the Chief Counsel, and the Directors of OEE, the Office of Antiboycott Compliance and the Office of Enforcement Analysis.

ECCNs in enforcement cases are generally, but not always, supported by a licensing determination issued internally to BIS, by the Office of Export Administration.

So, all that said, it’s somewhat surprising that these errors weren’t caught in the internal BIS review before the documents were issued by BIS. I do think it’s the Government’s responsibility to get its facts straight before it charges a person or business entity with violating the law, even in instances in which a party has admitted/self-disclosed a violation. The Government shouldn’t just take a disclosure on its face as defacto evidence of a violation; when I was at BIS we had many self-disclosures that resulted in a finding that the disclosing party was in error and a violation had not in fact occurred.

We can assume I think for purposes of discussion here that the disclosing party agreed with BIS’s conclusion that violations had occurred, even given the errors evident in the settlement documents. But, since there seems to be an open question about the number of billets involved, suppose the billets also did not meet the 75mm criteria of the ECCN? Were that the case, is it possible that a different ECCN might apply, one that would not require a license – and thus, would mean that no violation had in fact occurred?

One hopes that BIS will pay stricter attention to getting the facts right in its enforcement cases, and ensure it only issues penalties where violations have in fact occurred. Parties involved in BIS penalty cases, self-disclosed and otherwise, should carefully review all proposed and actual penalties issued by the agency to ensure they are both legally and factually supported – don’t just assume that BIS’s enforcement pronouncements, are the final word.