50 U.S.C. § 4820 — Enforcement

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. Page 1215 TITLE 50—WAR AND NATIONAL DEFENSE § 4820 (2) Export compliance program The implementation by a person of an effec- tive export compliance program and a high quality overall export compliance effort by a person should ordinarily be given weight as mitigating factors in a civil penalty action against the person under this subchapter. (e) Reference to enforcement For purposes of this section, a reference to the enforcement of, or a violation of, this sub- chapter includes a reference to the enforcement or a violation of any regulation, order, license or other authorization issued pursuant to this subchapter. (f) Omitted (g) Immunity A person shall not be excused from complying with any requirements under this section be- cause of the person’s privilege against self-in- crimination, but the immunity provisions of section 6002 of title 18 shall apply with respect to any individual who specifically claims such privilege. (h) Confidentiality of information (1) Exemptions from disclosure (A) In general Information obtained under this sub- chapter may be withheld from disclosure only to the extent permitted by statute, ex- cept that information described in subpara- graph (B) shall be withheld from public dis- closure and shall not be subject to disclosure under section 552(b)(3) of title 5, unless the release of such information is determined by the Secretary to be in the national interest. (B) Information described Information described in this subpara- graph is information submitted or obtained in connection with an application for a li- cense or other authorization to export, reex- port, or in-country transfer items or engage in other activities, a recordkeeping or re- porting requirement, an enforcement activ- ity, or other operations under this sub- chapter, including— (i) the license application, license, or other authorization itself; (ii) classification or advisory opinion re- quests, and the response thereto; (iii) license determinations, and informa- tion pertaining thereto; (iv) information or evidence obtained in the course of any investigation; and (v) information obtained or furnished in connection with any international agree- ment, treaty, or other obligation. (2) Information to the Congress and GAO (A) In general Nothing in this section shall be construed as authorizing the withholding of informa- tion from the Congress or from the Govern- ment Accountability Office. (B) Availability to the Congress (i) In general Any information obtained at any time under any provision of the Export Admin- istration Act of 1979 (50 U.S.C. 4601 et seq.) (as in effect on the day before August 13, 2018, and as continued in effect pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), under the Export Administration Regulations, or under this subchapter, including any re- port or license application required under any such provision, shall be made avail- able to a committee or subcommittee of Congress of appropriate jurisdiction, upon the request of the chairman or ranking mi- nority member of such committee or sub- committee. (ii) Prohibition on further disclosure No such committee or subcommittee, or member thereof, may disclose any infor- mation made available under clause (i), that is submitted on a confidential basis unless the full committee determines that the withholding of that information is con- trary to the national interest. (C) Availability to GAO (i) In general Information described in clause (i) of subparagraph (B) shall be subject to the limitations contained in section 716 of title 31. (ii) Prohibition on further disclosure An officer or employee of the Govern- ment Accountability Office may not dis- close, except to the Congress in accordance with this paragraph, any such information that is submitted on a confidential basis or from which any individual can be identi- fied. (3) Information sharing (A) In general Any Federal official described in section 4814(a) of this title who obtains information that is relevant to the enforcement of this subchapter, including information per- taining to any investigation, shall furnish such information to each appropriate de- partment, agency, or office with enforce- ment responsibilities under this section to the extent consistent with the protection of intelligence, counterintelligence, and law enforcement sources, methods, and activi- ties. (B) Exceptions The provisions of this paragraph shall not apply to information subject to the restric- tions set forth in section 9 of title 13, and re- turn information, as defined in subsection (b) of section 6103 of title 26, may be dis- closed only as authorized by that section. (C) Exchange of information The President shall ensure that the heads of departments, agencies, and offices with enforcement authorities under this sub- chapter, consistent with protection of law enforcement and its sources and methods— (i) exchange any licensing and enforce- ment information with one another that is necessary to facilitate enforcement efforts under this section; and Page 1216 TITLE 50—WAR AND NATIONAL DEFENSE § 4821 1 See References in Text note below. (ii) consult on a regular basis with one another and with the head of other depart- ments, agencies, and offices that obtain in- formation subject to this paragraph, in order to facilitate the exchange of such in- formation. (D) Information sharing with Federal agen- cies Licensing or enforcement information ob- tained under this subchapter may be shared with departments, agencies, and offices that do not have enforcement authorities under this subchapter on a case-by-case basis. (i) Reporting requirements In the administration of this section, report- ing requirements shall be designed to reduce the cost of reporting, recordkeeping, and docu- mentation to the extent consistent with effec- tive enforcement and compilation of useful trade statistics. Reporting, recordkeeping, and documentation requirements shall be periodi- cally reviewed and revised in the light of devel- opments in the field of information technology. (j) Civil forfeiture (1) In general Any property, real or personal, tangible or intangible, seized under subsection (a) by des- ignated officers or employees shall be subject to forfeiture to the United States in accord- ance with applicable law. (2) Procedures Any seizure or forfeiture under this sub- section shall be carried out in accordance with the procedures set forth in section 981 of title 18. (k) Rule of construction Nothing in this subchapter1 shall be construed to limit or otherwise affect the enforcement au- thorities of the Department of Homeland Secu- rity which may also complement those set forth herein. (Pub. L. 115–232, div. A, title XVII, § 1761, Aug. 13, 2018, 132 Stat. 2226.) Editorial Notes REFERENCES IN TEXT This subchapter, referred to in subsecs. (a), (b)(1), (2), (d), (e), and (h), was in the original ‘‘this part’’, mean- ing part I (§§ 1751–1768) of subtitle B of title XVII of div. A of Pub. L. 115–232, known as the Export Controls Act of 2018, which is classified principally to this sub- chapter. 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. The Export Administration Act of 1979, referred to in subsec. (h)(2)(B)(i), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, which was classified principally to chapter 56 (§ 4601 et seq.) of this title and was substantially re- pealed by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232. For complete classification of this Act to the Code, see Tables. The International Emergency Economic Powers Act, referred to in subsec. (h)(2)(B)(i), 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. This subchapter, referred to in subsec. (k), was in the original ‘‘this Act’’, and was translated as meaning part I (§§ 1751–1768) of subtitle B of title XVII of div. A of Pub. L. 115–232, known as the Export Controls Act of 2018, which is classified principally to this subchapter, as the probable intent of Congress. For complete classi- fication 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. CODIFICATION Section is comprised of section 1761 of Pub. L. 115–232. Subsec. (f) of section 1761 of Pub. L. 115–232 amended section 2516 of Title 18, Crimes and Criminal Procedure. § 4821. Administrative procedure (a) In general Except as provided in section 4819(c)(2) or 4843(c) of this title, the functions exercised under this subchapter shall not be subject to sections 551, 553 through 559, and 701 through 706 of title 5. (b) Administrative law judges (1) In general The Secretary may— (A) appoint administrative law judges, consistent with the provisions of section 3105 of title 5; and (B) designate properly appointed adminis- trative law judges from other Federal agen- cies who are provided to the Department of Commerce pursuant to a legally authorized interagency agreement. (2) Limitation An administrative law judge appointed or designated by the Secretary under paragraph (1) may preside only over proceedings of the Department of Commerce. (c) Amendments to regulations The President shall notify in advance the Committee on Banking, Housing, and Urban Af- fairs of the Senate and the Committee on For- eign Affairs of the House of Representatives of any proposed amendments to the Export Admin- istration Regulations with an explanation of the intent and rationale of such amendments. (Pub. L. 115–232, div. A, title XVII, § 1762, Aug. 13, 2018, 132 Stat. 2231.) Editorial Notes REFERENCES IN TEXT This subchapter, referred to in subsec. (a), was in the original ‘‘this part’’, meaning part I (§§ 1751–1768) of sub- title B of title XVII of div. A of Pub. L. 115–232, known as the Export Controls Act of 2018, which is classified principally to this subchapter. For complete classifica- tion 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. § 4822. Review of interagency dispute resolution process (a) In general The President shall review and evaluate the interagency export license referral, review, and