Exporting biometrics outside the U.S. by the book
license requirements in the Export Administration Regulations. Specifically mentioned in this request for public comment was whether items such as biometric devices and integrated security systems should be subject to crime control license requirements. This decision could go either way. Many of the existing technologies are available from firms outside the United States, making the case that the current policy only hurts U.S. exporters. On the other hand, this decision may indicate a tightening of biometrics export controls and may initiate the inclusion of iris and facial recognition technologies.
While changes might be forthcoming, companies exporting controlled biometrics technologies are required to screen and apply for export licenses as required under the Export Administration Regulations. Failure to do so can result in significant penalties under recently toughened sentencing guidelines. On 16 October 2007, President George Bush signed into law the International Emergency Economic Powers Enhancement Act. The law provides for civil penalties amounting to the greater of $250,000, or twice the value of the transaction on which the violation is based, imposed for each violation. Willful violators can expect criminal penalties, including fines up to $1 million and up to twenty years in prison.
Anzalone says that the fact that biometric hardware, software, and technologies are controlled for export, does not mean that biometric businesses will necessarily be losing foreign business. “What does not work is burying your head in the sand and hoping past sins will just go away. The BIS does not take lightly ignorance, or ‘self blinding,’ that is, refusing to accept information about an export. It does, however, give great weight mitigation in assessing penalties in administrative cases,” he writes. The first step is to have a qualified expert classify your products to determine whether or not they are controlled under one of the ECCNs mentioned and whether a license may be required for certain countries. An internal audit of your shipping documents or sales orders will uncover any potential violations. Potential violations may be voluntarily self-disclosed to the BIS to re-start with a clean slate. Keep in mind, however, that a self disclosure will not likely mitigate all penalties and the BIS will probably pay you a personal visit to ask for additional information. In addition, one of the requirements of a voluntary disclosure is the implementation of an export compliance system procedure to ensure that future violations will not occur. “Having a good export compliance policy in place is the best method to avoid fines, being banned from government contracts, and bad press,” he writes. At a recent BIS Export Control Forum in Newport Beach, California, Assistant Secretary. of Commerce Darryl Jackson stated that compliance is more important than ever. Compliance will help you avoid enforcement actions. If you cannot avoid an enforcement action, having an effective compliance program will get you great weight mitigation in administrative cases. “Aside from being the ‘right thing to do,’ an effective export compliance program can save you money, keep away negative publicity and be a weapon against competitors who continue to operate in the dark,” Anzalone concludes.
