§ 758.7 - Authorities of the Bureau of Industry and Security, Office of Export Enforcement (OEE).

§ 758.7 Authority Authorities of the Office of Export Enforcement, the Bureau of Industry and Security, Customs offices and Postmasters in clearing shipmentsOffice of Export Enforcement (OEE).

(a) Actions to assure compliance with the EAR. Officials of BIS, the Office of Export Enforcement, the U.S. Customs Service and postmasters, including post office officials, export laws and regulations. OEE officials and any other officials of the United States designated by OEE are authorized and directed to take appropriate action to assure compliance with the EAR. This includes enforce the authorities granted to the Secretary under the laws and regulations of the United States, including ECRA, 13 U.S.C. 305, 22 U.S.C. 401, 50 U.S.C. 1701 et seq., the EAR, and the Foreign Trade Regulations (FTR) (15 CFR part 30). This includes, but is not limited to, assuring that:

(1) Exports, reexports, and transfers (in-country) without a license issued by BIS are either outside the scope of the license requirements of the Export Administration Regulations EAR or authorized by a License Exception; and license exception and comply with the terms of the license exception;

(2) Exports, reexports, transfers (in-country) purporting to be authorized by licenses issued by BIS are, in fact, so authorized and the transaction complies with the terms of the license;

(3) Accurate EEI filings have been made for exports as required by this part, the FTR, and other federal regulations; and

(4) The activities of U.S. persons, wherever located, which are subject to a license requirement pursuant to § 744.6 of the EAR, are authorized by and comply with the terms of a BIS license.

(b) Types of actions. The officials designated in paragraph (a) of this section In carrying out the authorities granted to, and exercised by, the Secretary pursuant to ECRA, 13 U.S.C. 305, 22 U.S.C. 401, 50 U.S.C. 1701 et seq., the EAR, the FTR, and other applicable laws and regulations of the United States, including the authority to control the export, reexport, and transfer (in-country) of items, in any form, subject to the jurisdiction of the United States, whether by U.S. or foreign persons; control the activities of U.S. persons, wherever located, as described in § 744.6 of the EAR; ensure compliance with export controls; monitor shipments and other means of transfer; conduct investigations; and issue orders, OEE officials and any other officials of the United States designated by OEE are authorized to take the following types of enforcement actions : described below.

(1) Inspection, search, and detention of items -

(i) Purpose of inspection, search, and detention. All items declared for export are subject to inspection for the purpose of verifying the items specified in the Electronic Export Information (EEI) subject to export laws and regulations administered or enforced by the Secretary that have been, are being, or are about to be exported, reexported, or transferred (in-country) are subject to inspection, search, and detention. The scope of inspection may include, but is not limited to, item identification; technical appraisal (analysis) or both; verifying the accuracy of the EEI filing, or if there is no EEI filing, the air waybill, bill of lading or other loading document covering the items item about to be exported, reexported, or transferred (in-country); and verifying the value and quantity thereof, and to assure observance of the other provisions of the Export Administration Regulations. This authority applies to all exports within the scope of the Export Administration Act or Export Administration Regulations whether or not such exports require a license issued by BIS. The inspection may include, but is not limited to, item identification, technical appraisal (analysis), or both.

(ii) Place of inspection. Inspection shall be made at the place of lading or where officials authorized to make those inspections are stationed for that purpose

of such item.

(ii) Place of inspection, search, and detention. Inspection, search, and detention may take place at any location inside or outside of the United States, to include, but not limited to, the borders of the United States, all ports of exit, the premises of freight forwarders, bonded warehouses, foreign trade zones, and manufacturing, transportation, and storage facilities.

(iii) Technical identification. Where, in the judgment of the official making the inspection, the item cannot be properly identified, a sample may be taken for more detailed examination or for laboratory analysis.

(A) Obtaining samples. The sample will be obtained by the official making the inspection in accordance with the provisions for sampling imported merchandise. The size of the sample will be the minimum representative amount necessary for identification or analysis. This will depend on such factors as the physical condition of the material (whether solid, liquid, or gas) and the size and shape of the container.

(B) Notification to exporter and consignee. When a sample is taken, the exporter (or the exporter's agent) , reexporter, or transferor, or their agent(s), and the ultimate consignee will be notified by letter from one of the official designated in paragraph (a) of this section, showing an OEE official, documenting the port of export, reexport, or other place of inspection, date of sampling, export BIS license number (if any) or other authorization, invoice number, quantity of sample taken, description of item, marks and packing case numbers, and manufacturer's number for the item. The original A copy of the letter will be sent to the exporter or the exporter's agent, the duplicate will be placed in the container that had been opened by the inspecting official, and the triplicate a copy will be retained by the inspecting official's office.

(C) Disposal of samples. Samples will be disposed of in accordance with the U.S. Customs Service and Border Protection procedure for imported commodities.

(2) Inspection of documents -

(i) General. Officials designated in paragraph (a) of this section are authorized to require exporters or their agents

and production of books, records, and other information. OEE officials are authorized to require any person subject to export laws and regulations administered or enforced by the Secretary, including, but not limited to, exporters, reexporters, transferors, or their agent(s), and owners and operators of

exporting

carriers or their agents, as well as intermediate consignees, ultimate consignees, and end users, and their agent(s) to produce for inspection

or copying:

and copying any books, records and other information, including, but not limited to, invoices, orders, letters of credit, inspection reports, technical documentation, packing lists, shipping documents and instructions,

correspondence, and any other relevant documents, as well as furnish other information bearing upon a particular shipment being exported or intended to be exported.

(ii) Cartridge and shell case scrap. When cartridge or shell cases are being exported as scrap (whether or not they have been heated, flame-treated, mangled, crushed, or cut) from the United States, the U.S. Customs Service is authorized to require the exporter to furnish information bearing on the identity and relationships of all parties to the transaction and produce a copy of the bid offer by the armed services in order to assure that the terms of the Export Administration Regulations are being met and that the material being shipped is scrap.

(

and correspondence.

(3) Questioning of individuals. Officials designated in paragraph (a) of this section OEE officials are authorized to question any person, including, but not limited to, the owner or operator of an exporting a carrier and the carrier's agent(s), as well as the exporter and the exporter's , reexporter, transferor (in-country), or their agent(s), concerning a particular shipment exported or intended to be exported.

(4) Prohibiting lading. Officials designated in paragraph (a) of this section are authorized to OEE officials may prevent the lading of items on an exporting carrier whenever those officials have reasonable cause to believe that the export or removal from the United States is contrary to the Export Administration Regulationsa conveyance.

(5) Inspection of exporting carrier. The U.S. Customs Service is , search, and detention of conveyance. OEE officials are authorized to inspect, search, and search detain any exporting carrier conveyance at any time to determine whether items are intended have been, are being, or are about to be exported, or are being, exported or removed from reexported, or transferred (in-country). Inspection, search, and detention of a conveyance may take place at any location inside or outside of the United States contrary to the Export Administration Regulations. Officials of the Office of Export Enforcement may conduct such inspections with the concurrence of the U.S. Customs Service.

(6) Seizure and detention. Customs officers are authorized, under Title 22 of the United States Code, section 401, et seq., to seize and detain any items whenever an attempt is made to export such items in violation of the Export Administration Regulations, or whenever they know or have probable cause to believe that the items are intended to be, are being, or have been exported in violation of the EAR. In addition to the authority of Customs officers to seize and detain items, both Customs officials and officials of the Office of Export Enforcement are authorized to detain any shipment held for review of the AES record, or if there is no AES record, the bill of lading or other loading document covering the items about to be exported, or for physical inspection of the items, whenever such action is deemed to be necessary to assure compliance with the EAR.

(7) Preventing departure of carrier. The U.S. Customs Service is authorized under Title 22 of the U. S. Code, section 401, et seq., to seize and detain, either before or after clearance, any vessel or vehicle or air carrier that has been or is being used in exporting or attempting to export any item intended to be, being, or having been exported in violation of the EAR.

(8) Ordering the unloading. The U.S. Customs Service is authorized to unload, or to order the unloading of, items from any exporting carrier, whenever the U.S. Customs Service has reasonable cause to believe such items are intended to be, or are being, exported or removed from the United States contrary to the EAR.

(9) Ordering the return of items. If, after notice that an inspection of a shipment is to be made, a carrier departs without affording the U.S. Customs Service, Office of Export Enforcement, or BIS personnel an adequate opportunity to examine the shipment, the owner or operator of the exporting carrier and the exporting carrier's agent(s) may be ordered to return items exported on such exporting carrier and make them available for inspection.

(10) Designating time and place for clearance. The U.S. Customs Service is authorized to designate times and places at which U.S. exports may move by land transportation to countries contiguous to the United States.

[61 FR 12852, Mar. 25, 1996, as amended at 62 FR 25469, May 9, 1997; 68 FR 50474, Aug. 21, 2003; 78 FR 13470, Feb. 28, 2013; 79 FR 4619, Jan. 29, 2014

, to include, but not limited to, the borders of the United States, all ports of exit, the premises of freight forwarders, bonded warehouses, foreign trade zones, and manufacturing, transportation, and storage facilities.

(6) Seizure of property. OEE officials are authorized to seize any property, tangible or intangible, when there is probable cause to believe that such property is subject to administrative forfeiture (nonjudicial civil forfeiture or summary forfeiture), civil judicial forfeiture, or criminal forfeiture. Seizures of property subject to forfeiture may take place at any location inside or outside of the United States, to include, but not limited to, the borders of the United States, all ports of exit, the premises of freight forwarders, bonded warehouses, foreign trade zones, and manufacturing, transportation, and storage facilities.

(7) Administrative forfeiture authority. OEE is authorized to initiate administrative forfeiture (nonjudicial civil forfeiture or summary forfeiture) proceedings and forfeit property in accordance with the procedures set forth in 18 U.S.C. 981(d) and the Customs laws (19 U.S.C. 1602 et seq).

(8) Enforcement activity.

(i) All BIS actions taken to implement, administer, and enforce the authorities granted to the Secretary shall be conducted pursuant to the U.S. Constitution and all applicable laws and regulations, including judicially recognized exceptions to the requirement for a search warrant under the Fourth Amendment, for example, consent of the person to be searched, exigent circumstances, searches incident to a lawful arrest, and border searches.

(ii) BIS may enter into any such agreements (e.g., memoranda of understanding) with other Federal agencies as deemed necessary by BIS to execute the authorities set forth in this part in a lawful and orderly manner.

(iii) BIS shall issue additional guidance as necessary to ensure the lawful and orderly execution of the Secretary's authorities.

(iv) Nothing in this section is intended to limit or abridge BIS law enforcement officers from exercising their lawful authority in carrying out their official duties.

[85 FR 73414, Nov. 18, 2020]