50 U.S.C. § 4819 — Penalties

Page 1212 TITLE 50—WAR AND NATIONAL DEFENSE § 4819 (Pub. L. 115–232, div. A, title XVII, § 1759, Aug. 13, 2018, 132 Stat. 2223; Pub. L. 116–283, div. A, title X, § 1081(d)(8), Jan. 1, 2021, 134 Stat. 3874.) Editorial Notes AMENDMENTS 2021—Subsec. (a)(2). Pub. L. 116–283 substituted period for semicolon at end. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Pub. L. 116–283, div. A, title X, § 1081(d), Jan. 1, 2021, 134 Stat. 3873, provided that the amendment made by section 1081(d)(8) is effective as of Aug. 13, 2018, and as if included in Pub. L. 115–232. § 4819. Penalties (a) Unlawful acts (1) In general It shall be unlawful for a person to violate, attempt to violate, conspire to violate, or cause a violation of this subchapter or of any regulation, order, license, or other authoriza- tion issued under this subchapter, including any of the unlawful acts described in para- graph (2). (2) Specific unlawful acts The unlawful acts described in this para- graph are the following: (A) No person may engage in any conduct prohibited by or contrary to, or refrain from engaging in any conduct required by this subchapter, the Export Administration Reg- ulations, or any order, license or authoriza- tion issued thereunder. (B) No person may cause or aid, abet, counsel, command, induce, procure, permit, or approve the doing of any act prohibited, or the omission of any act required by this subchapter, the Export Administration Reg- ulations, or any order, license or authoriza- tion issued thereunder. (C) No person may solicit or attempt a vio- lation of this subchapter, the Export Admin- istration Regulations, or any order, license or authorization issued thereunder. (D) No person may conspire or act in con- cert with one or more other persons in any manner or for any purpose to bring about or to do any act that constitutes a violation of this subchapter, the Export Administration Regulations, or any order, license or author- ization issued thereunder. (E) No person may order, buy, remove, conceal, store, use, sell, loan, dispose of, transfer, transport, finance, forward, or oth- erwise service, in whole or in part, or con- duct negotiations to facilitate such activi- ties for, any item exported or to be exported from the United States, or that is otherwise subject to the Export Administration Regu- lations, with knowledge that a violation of this subchapter, the Export Administration Regulations, or any order, license or author- ization issued thereunder, has occurred, is about to occur, or is intended to occur in connection with the item unless valid au- thorization is obtained therefor. (F) No person may make any false or mis- leading representation, statement, or certifi- cation, or falsify or conceal any material fact, either directly to the Department of Commerce, or an official of any other United States agency, including the Department of Homeland Security and the Department of Justice, or indirectly through any other per- son— (i) in the course of an investigation or other action subject to the Export Admin- istration Regulations; (ii) in connection with the preparation, submission, issuance, use, or maintenance of any export control document or any re- port filed or required to be filed pursuant to the Export Administration Regulations; or (iii) for the purpose of or in connection with effecting any export, reexport, or in- country transfer of an item subject to the Export Administration Regulations or a service or other activity of a United States person described in section 4813 of this title. (G) No person may engage in any trans- action or take any other action with intent to evade the provisions of this subchapter, the Export Administration Regulations, or any order, license, or authorization issued thereunder. (H) No person may fail or refuse to comply with any reporting or recordkeeping require- ments of the Export Administration Regula- tions or of any order, license, or authoriza- tion issued thereunder. (I) Except as specifically authorized in the Export Administration Regulations or in writing by the Department of Commerce, no person may alter any license, authorization, export control document, or order issued under the Export Administration Regula- tions. (J) No person may take any action that is prohibited by a denial order or a temporary denial order issued by the Department of Commerce to prevent imminent violations of this subchapter, the Export Administration Regulations, or any order, license or author- ization issued thereunder. (3) Additional requirements For purposes of paragraph (2)(F), any rep- resentation, statement, or certification made by any person shall be deemed to be con- tinuing in effect. Each person who has made a representation, statement, or certification to the Department of Commerce relating to any order, license, or other authorization issued under this subchapter shall notify the Depart- ment of Commerce, in writing, of any change of any material fact or intention from that previously represented, stated, or certified, immediately upon receipt of any information that would lead a reasonably prudent person to know that a change of material fact or in- tention had occurred or may occur in the fu- ture. (b) Criminal penalty A person who willfully commits, willfully at- tempts to commit, or willfully conspires to com- Page 1213 TITLE 50—WAR AND NATIONAL DEFENSE § 4819 1 See References in Text note below. mit, or aids and abets in the commission of, an unlawful act described in subsection (a)— (1) shall be fined not more than $1,000,000; and (2) in the case of the individual, shall be im- prisoned for not more than 20 years, or both. (c) Civil penalties (1) Authority The Secretary may impose the following civil penalties on a person for each violation by that person of this subchapter or any regu- lation, order, or license issued under this sub- chapter, for each violation: (A) A fine of not more than $300,000 or an amount that is twice the value of the trans- action that is the basis of the violation with respect to which the penalty is imposed, whichever is greater. (B) Revocation of a license issued under this subchapter to the person. (C) A prohibition on the person’s ability to export, reexport, or in-country transfer any items controlled under this subchapter. (2) Procedures Any civil penalty under this subsection may be imposed only after notice and opportunity for an agency hearing on the record in accord- ance with sections 554 through 557 of title 5. (3) Standards for levels of civil penalty The Secretary may by regulation provide standards for establishing levels of civil pen- alty under this subsection based upon factors such as the seriousness of the violation, the culpability of the violator, and such miti- gating factors as the violator’s record of co- operation with the Government in disclosing the violation. (d) Criminal forfeiture (1) In general Any person who is convicted under sub- section (b) of a violation of a control imposed under section 4812 of this title (or any regula- tion, order, or license issued with respect to such control) shall, in addition to any other penalty, forfeit to the United States any of the person’s property— (A) used or intended to be used, in any manner, to commit or facilitate the viola- tion; (B) constituting or traceable to the gross proceeds taken, obtained, or retained, in connection with or as a result of the viola- tion; or (C) constituting an item or technology that is exported or intended to be exported in violation of this subchapter.1 (2) Procedures The procedures in any forfeiture under this subsection shall be governed by the procedures established under section 853 of title 21, other than subsection (d) of such section. (e) Prior convictions (1) License bar (A) In general The Secretary may— (i) deny the eligibility of any person con- victed of a criminal violation described in subparagraph (B) to export, reexport, or in-country transfer outside the United States any item, whether or not subject to controls under this subchapter, for a pe- riod of up to 10 years beginning on the date of the conviction; and (ii) revoke any license or other author- ization to export, reexport, or in-country transfer items that was issued under this subchapter and in which such person has an interest at the time of the conviction. (B) Violations The violations referred to in subparagraph (A) are any criminal violations of, or crimi- nal attempt or conspiracy to violate— (i) this subchapter (or any regulation, li- cense, or order issued under this sub- chapter); (ii) any regulation, license, or order issued under the International Emergency Economic Powers Act [50 U.S.C. 1701 et seq.]; (iii) section 371, 554, 793, 794, or 798 of title 18; (iv) section 1001 of title 18; (v) section 783(b) of this title; or (vi) section 2778 of title 22. (2) Application to other parties The Secretary may exercise the authority under paragraph (1) with respect to any person related, through affiliation, ownership, con- trol, position of responsibility, or other con- nection in the conduct of trade or business, to any person convicted of any violation of law set forth in paragraph (1), upon a showing of such relationship with the convicted party, and subject to the procedures set forth in sub- section (c)(2). (f) Other authorities Nothing in subsection (c), (d), or (e) limits— (1) the availability of other administrative or judicial remedies with respect to violations of this subchapter, or any regulation, order, li- cense or other authorization issued under this subchapter; (2) the authority to compromise and settle administrative proceedings brought with re- spect to violations of this subchapter, or any regulation, order, license, or other authoriza- tion issued under this subchapter; or (3) the authority to compromise, remit or mitigate seizures and forfeitures pursuant to section 401(b) of title 22. (Pub. L. 115–232, div. A, title XVII, § 1760, Aug. 13, 2018, 132 Stat. 2223.) Editorial Notes REFERENCES IN TEXT This subchapter, referred to in subsecs. (a), (c)(1), (e)(1), and (f)(1), (2), was in the original ‘‘this part’’, meaning part I (§§ 1751–1768) of subtitle B of title XVII of div. A of Pub. L. 115–232, known as the Export Con- trols Act of 2018, which is classified principally to this subchapter. For complete classification of part I to the Code, see section 1751 of Pub. L. 115–232, set out as a Short Title note under section 4801 of this title and Ta- bles. Page 1214 TITLE 50—WAR AND NATIONAL DEFENSE § 4820 This subchapter, referred to in subsec. (d)(1)(C), was in the original ‘‘this title’’, and was translated as meaning part I (§§ 1751–1768) of subtitle B of title XVII of div. A of Pub. L. 115–232, which is classified prin- cipally to this subchapter, to reflect the probable in- tent of Congress. For complete classification of part I to the Code, see section 1751 of Pub. L. 115–232, set out as a Short Title note under section 4801 of this title and Tables. The International Emergency Economic Powers Act, referred to in subsec. (e)(1)(B)(ii), is title II of Pub. L. 95–223, Dec. 28, 1977, 91 Stat. 1626, which is classified generally to chapter 35 (§ 1701 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1701 of this title and Tables. § 4820. Enforcement (a) Authorities In order to enforce this subchapter, the Sec- retary, on behalf of the President, may exercise, in addition to relevant enforcement authorities of other Federal agencies, the authority to— (1) issue orders and guidelines; (2) require, inspect, and obtain books, records, and any other information from any person subject to the provisions of this sub- chapter; (3) administer oaths or affirmations and by subpoena require any person to appear and tes- tify or to appear and produce books, records, and other writings, or both; (4) conduct investigations within the United States and outside the United States con- sistent with applicable law; (5) inspect, search, detain, seize, or issue temporary denial orders with respect to items, in any form, that are subject to controls under this subchapter, or conveyances on which it is believed that there are items that have been, are being, or are about to be exported, reex- ported, or in-country transferred in violation of this subchapter, or any regulations, order, license, or other authorization issued there- under; (6) carry firearms; (7) conduct prelicense inspections and post- shipment verifications; and (8) execute warrants and make arrests. (b) Undercover investigations (1) In general Amounts made available to carry out this subchapter may be used by the Secretary to carry out undercover investigations that are necessary for detection and prosecution of vio- lations of this subchapter, including to— (A) purchase property, buildings, and other facilities, and to lease space, within the United States, the District of Columbia, and the territories and possessions of the United States without regard to— (i) sections 1341 and 3324 of title 31; (ii) section 8141 of title 40; (iii) sections 3901, 6301(a) and (b)(1) to (3), and 6306 of title 41; and (iv) chapter 45 of title 41; and (B) establish or acquire proprietary cor- porations or business entities as part of the undercover operation and operate such cor- porations or business entities on a commer- cial basis, without regard to sections 9102 and 9103 of title 31. (2) Deposit of amounts in banks or other finan- cial institutions Amounts made available to carry out this subchapter that are used to carry out under- cover operations under paragraph (1) may be deposited in banks or other financial institu- tions without regard to the provisions of sec- tion 648 of title 18 and section 3302 of title 31. (3) Offset of necessary and reasonable ex- penses Any proceeds from an undercover operation carried out under paragraph (1) may be used to offset necessary and reasonable expenses in- curred in such undercover operation without regard to the provisions of section 3302 of title 31. (4) Disposition of corporations and business entities If a corporation or business entity estab- lished or acquired as part of an undercover op- eration carried out under paragraph (1) with a net value of over $50,000 is to be liquidated, sold, or otherwise disposed of, the Secretary shall report the circumstances to the Comp- troller General of the United States as much in advance of such disposition as the Sec- retary determines is practicable. The proceeds of the liquidation, sale, or other disposition, after obligations are met, shall be deposited in the Treasury of the United States as miscella- neous receipts. Any property or equipment purchased pursuant to paragraph (1) may be retained for subsequent use in undercover op- erations under this section. When such prop- erty or equipment is no longer needed, it shall be considered surplus and disposed of as sur- plus government property. (5) Deposit of proceeds As soon as the proceeds from an undercover operation carried out under paragraph (1), with respect to which an action is certified and carried out under this subsection, are no longer needed for the conduct of such oper- ation, the proceeds or the balance of such pro- ceeds remaining at the time shall be deposited into the Treasury of the United States as mis- cellaneous receipts. (c) Enforcement of subpoenas In the case of contumacy by, or refusal to obey a subpoena issued to, any person under sub- section (a)(3), a district court of the United States, after notice to such person and a hear- ing, shall have jurisdiction to issue an order re- quiring such person to appear and give testi- mony or to appear and produce books, records, and other writings, regardless of format, that are the subject of the subpoena. Any failure to obey such order of the court may be punished by such court as a contempt thereof. (d) Best practice guidelines (1) In general The Secretary, in consultation with the heads of other appropriate Federal agencies, should publish and update ‘‘best practices’’ guidelines to assist persons in developing and implementing, on a voluntary basis, effective export control programs in compliance with the regulations issued under this subchapter.