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E-Commerce

E-Commerce


You will not find the term“E-Commerce” within the Export Administration Regulations (EAR); however, commerce transacted electronically may be subject to the EAR, the same as transactions that are not electronically facilitated.

 

The EAR apply to the conduct of business communication and transactions over networks and through computers and with the non-electronic buying and selling of goods and services and the transfer of funds. Your export (or deemed export)/reexport (or deemed reexport)/transfer transactions and other services may be subject to the EAR. Some transactions and activities specific to the E-Commerce environment where you should determine if you are subject to the EAR include:

  • Orders processed using the internet with tangible delivery of goods;
  • Intangible downloads and releases of technology and software.
  • The various services performed during transactions; and
  • Transfer of funds to certain entities and prohibited activities.

     

Related E-Commerce Links and FAQs
Links:

Assistant Secretary Darryl W. Jackson Opening Keynote Address ACI 3rd
National Forum on International Technology Transfers, San Francisco, CA, January
27, 2007 http://www.bis.doc.gov/news/2007/jackson02012007.htm

FAQs:

Am I required under the EAR to actively screen for terrorist-supporting destinations?

In your business practice, it is prudent to use a standard of care to ensure that you will not violate any of the prohibition identified in the EAR. The EAR does not require a person posting software on the Internet to implement screening procedures for the terrorist countries. The "Know Your Customer" guidance in Supplement No. 3 to Part 732 provides companies with guidelines on how to comply with their responsibilities under the EAR. Related E-Commerce Links and FAQs

 

Red Flag Indicators

Things to Look for in Export Transactions

Use this as a check list to discover possible violations of the Export Administration Regulations. You may also wish to visit our page that provides "Know Your Customer Guidance."

  • The customer or its address is similar to one of the parties found on the Commerce Department's [BIS'] list of denied persons.
  • The customer or purchasing agent is reluctant to offer information about the end-use of the item.
  • The product's capabilities do not fit the buyer's line of business, such as an order for sophisticated computers for a small bakery.
  • The item ordered is incompatible with the technical level of the country to which it is being shipped, such as semiconductor manufacturing equipment being shipped to a country that has no electronics industry.
  • The customer is willing to pay cash for a very expensive item when the terms of sale would normally call for financing.
  • The customer has little or no business background.
  • The customer is unfamiliar with the product's performance characteristics but still wants the product.
  • Routine installation, training, or maintenance services are declined by the customer.
  • Delivery dates are vague, or deliveries are planned for out of the way destinations.
  • A freight forwarding firm is listed as the product's final destination.
  • The shipping route is abnormal for the product and destination.
  • Packaging is inconsistent with the stated method of shipment or destination.
  • When questioned, the buyer is evasive and especially unclear about whether the purchased product is for domestic use, for export, or for reexport.

If you have reason to believe a violation is taking place or has occurred, you may report it to the Department of Commerce by calling its 24-hour hot-line number: 1 (800) 424-2980. Or, if you prefer, use our form to submit a confidential tip.

 

Iran Web Guidance

Guidance on Actions Exporters Can Take to Prevent Illicit Diversion of Items to Support Iran’s Nuclear Weapons or Ballistic Missile Programs

It is the policy of the United States to counter Iran’s pursuit of technology that could enable it to develop nuclear weapons and missiles capable of delivering them. In support of this effort, the United States maintains comprehensive economic sanctions on Iran.

IRAN’S ILLICIT PROCUREMENT EFFORTS

  • Iran is currently trying to procure items for its uranium enrichment centrifuge program. For this program, Iran will need to procure items on the Commerce Control List (CCL) such as carbon fiber (controlled under Export Control Classification Numbers (ECCNs) 1A002, 1C010, 1C210, 1C990) and filament winding machines (ECCNs 1B001, 1B101, 1B201), as well as items classified as EAR99, such as epoxy resin. Epoxy resin and related hardening/accelerator agents are necessary to bind the carbon fibers used in both uranium centrifuge and missile structures. Thus, U.S. manufacturers of such items should be particularly vigilant.
  • As outlined in International Atomic Energy Agency (IAEA) Director General El Baradei’s report of February 22, 2008, Iran has admitted to attempting to evade international sanctions to procure sensitive items, using deceptive procurement tactics to obtain items that can contribute to its weapons of mass destruction (WMD) programs.
  • Specifically, Iranian entities form front companies in other countries for the sole purpose of exporting dual-use items, including U.S. origin items, to Iran that it can use in its nuclear and missile programs. These companies appear to be procuring dual-use items for commercial activities and enable Iran to obtain materials that would typically be prevented by export control restrictions in supplier countries. They make it difficult for businesses to know that the end-user is in Iran. Furthermore, these front companies are often in third countries where U.S. companies have strong trading relationships.

EXPORTER DILIGENCE

  • Not all items that Iran could use for weapons of mass destruction-development activities are listed on the CCL. Therefore, exporters must be vigilant on the potential end-use of all items exported from the United States. (e.g., epoxy resin).
  • The exportation of any item that is subject to the EAR (including an EAR99 item) to Iran without a license is prohibited under regulations maintained by the Department of the Treasury's Office of Foreign Assets Control (OFAC). This includes any exports to a third country if the exporter knows or has reason to know that the item will be reexported to Iran.
  • Exporters should screen parties to a transaction against the Denied Persons List, Entity List, Unverified List, BIS General Orders, and the Specially Designated Nationals and Blocked Persons List.
  • Exporters should take note of any abnormal circumstances in a transaction that indicate that the export may be destined for an inappropriate end-use, end-user, or destination. For example:
    • unusual quantity requests;
    • paying above market prices or using unusual payment methods;
    • waivers of normal installation, training or maintenance agreements; and
    • requests for delivery to one country with original orders from a second country or direct delivery to a freight forwarder.
  • When such "red flags" arise, you should check out the suspicious circumstances and inquire about the end-use, end-user, or ultimate country of destination.
  • If you encounter “red flags” that you are unable to resolve with reasonable inquiry, contact BIS.
  • Companies should have in place compliance and/or business procedures to be immediately responsive to theft or unauthorized delivery.
  • If you believe a previous shipment has been diverted and may have gone to an end user in Iran, we encourage you to report it to BIS.

SUMMARY OF STEPS U.S. EXPORTERS CAN TAKE TO PREVENT UNAUTHORIZED EXPORTS TO IRAN

  • Remain vigilant and know your customer. 
  • Understand “Red Flag” indicators.
  • Be cautious of customers operating in transshipment countries or free trade zones.
  • Be familiar with U.S. Government screening lists.
  • Contact BIS if something does not seem right about the transaction or if you suspect a shipment may have been diverted to Iran.
  • Subscribe to the Department of the Treasury, Office of Foreign Assets Control’s service to receive notifications of changes to the List of Specially Designated Nationals and Blocked Persons.

Know Your Customer Guidance

Certain provisions in the Export Administration Regulations (EAR) require an exporter to submit an individual validated license application if the exporter "knows" that an export that is otherwise exempt from the validated licensing requirements is for end-uses involving nuclear, chemical, and biological weapons (CBW), or related missile delivery systems, in named destinations listed in the EAR.

BIS has issued the following guidance on how individuals and firms should act under this knowledge standard. This guidance does not change or revise the EAR.

Decide whether there are "Red Flags"

Take into account any abnormal circumstances in a transaction that indicate that the export may be destined for an inappropriate end-use, end-user, or destination. Such circumstances are referred to as "Red Flags." Included among examples of red flags are orders for items which are inconsistent with the needs of the purchaser, a customer's declining installation and testing when included in the sales price or when normally requested, or requests for equipment configurations which are incompatible with the stated destination (e.g.--120 volts in a country with a standard of 220 volts). BIS has developed lists of such "Red Flags" which are not all-inclusive but are intended to illustrate the types of circumstances that should cause reasonable suspicion that a transaction will violate the EAR. You should also review U.S. Government Lists to Check to identify parties prohibited or restricted from participating in U.S. export transactions; and BIS's Univerified List of parties whose bona fides BIS has been unable to determine in end-use checks.

If there are "Red Flags"

If there are no "Red Flags" in the information that comes to your firm, you should be able to proceed with a transaction in reliance on information you have received. That is, absent "Red Flags" (or an express requirement in the EAR), there is no affirmative duty upon exporters to inquire, verify, or otherwise "go behind" the customer's representations. However, when "Red Flags" are raised in the information that comes to your firm, you have a duty to exercise due diligence to inquire regarding the suspicious circumstances and ensure appropriate end-use, end-user, or ultimate country of destination in the transactions you propose to engage in.

The duty to check out "Red Flags" is not confined to transactions involving the "know," "reason to know," or "is informed" sections of the EAR. Parties engaging in export transactions are required by the EAR to obtain documentary evidence concerning the transaction, and misrepresentation or concealment of material facts is prohibited, both in the licensing process and in all export control documents. You can rely upon representations from your customer and repeat them in the documents you file unless "Red Flags" oblige you to take verification steps.

Do not self-blind

Do not cut off the flow of information that comes to your firm in the normal course of business. For example, do not instruct the sales force to tell potential customers to refrain from discussing the actual end-use, end-user and ultimate country of destination for the product your firm is seeking to sell. Do not put on blinders that prevent the learning of relevant information. An affirmative policy of steps to avoid "bad" information would not insulate a company from liability, and it would usually be considered an aggravating factor in an enforcement proceeding.

Employees need to know how to handle "Red Flags." Knowledge possessed by an employee of a company can be imputed to a firm so as to make the firm liable for a violation. This makes it important for firms to establish clear policies and effective compliance procedures to ensure that such knowledge about transactions can be evaluated by responsible senior officials. Failure to do so could be regarded as a form of self-blinding.

Reevaluate all the information after the inquiry

The purpose of this inquiry and reevaluation is to determine whether the "Red Flags" can be explained or justified so as to evidence the bona fides of the party and the legitimacy of the transaction. If they can, you may proceed with the transaction. If the "Red Flags" cannot be explained or justified and you proceed, you run the risk of having had "knowledge" that would make your action a violation of the EAR.

Refrain from the transaction, disclose the information to BIS and wait

If you continue to have reason for concern after your inquiry, then you should either refrain from the transaction or submit all the relevant information to BIS in the form of an application for a validated license or in such other form as BIS may specify.

Industry has an important role to play in preventing exports and reexports contrary to the national security and foreign policy interests of the United States. BIS works in partnership with industry to make this front line of defense effective, while minimizing the regulatory burden on exporters. If you have any question about whether you have encountered a "Red Flag," you may contact BIS' Office of Export Enforcement or use this Confidential Enforcement Lead/Tip Form to submit a confidential tip.

Please note that use of the form will not generate any return e-mail to you so that the information you submit will remain confidential.