BIS Can Now Renew Temporary Denial Orders for 1 Year

The Bureau of Industry and Security will now be able to renew its temporary denial orders for one year instead of the previous maximum of 180 days, the agency said in a final rule. BIS said it can now request extended renewals of TDOs if it demonstrates the parties subject to the orders -- which generally suspend them from participating in transactions subject to the Export Administration Regulations -- have “engaged in a pattern of repeated, ongoing and/or continuous apparent violations of the EAR.”

The change, effective Aug. 29, is a departure from the previous criteria BIS needed to meet to renew TDOs for 180 days, which required the agency to show that a “violation may be ‘imminent’ either in time or degree of likelihood.” The new standard requires BIS to show one-year “is appropriate to address such continued apparent violations.” BIS would also be required to show “not just the likelihood of future imminent violations of the EAR,” but also “specific facts demonstrating past apparent violations of the EAR.”

BIS will issue extended TDO renewals in cases “where a respondent has acted in apparent blatant disregard of the EAR, where a respondent has attempted to circumvent or has otherwise appeared to violate the restrictions of a TDO or the EAR, or has otherwise acted in a manner demonstrating a pattern of apparent noncompliance with the requirements of the EAR.” BIS said this will be especially useful in Russia-related TDOs that the agency has issued against various Russian and Belarusian airlines over the past year.

“Cases such as these, which involve an existing TDO combined with a pattern of repeated, ongoing, and/or continuous conduct that appears to violate a TDO or the EAR, leading to the need to repeatedly renew the applicable TDOs, are emblematic of the type of conduct which this extended renewal option is intended to address,” the agency said. “Such extended renewals will serve as an enhanced deterrent for such actors who are engaging in such apparent violative conduct and others who may be inclined to engage in behavior to facilitate such activities.”

BIS also said the extended renewals will give “enhanced notice to companies and individuals” in the U.S. and abroad that they “should avoid dealing with such actors of concern.” If BIS determines that a TDO shouldn’t be renewed for one year, the agency said, it will still be able to renew it for 180 days.