From the ECB mailbag:
At the recent Update Wendy Wysong was asked under what authority the Office of Export Enforcement is making pseudo 'denied party' publications via the Unverified List for those companies/organizations/individuals "to which BIS could not conduct a pre-license check ("PLC") or a post-shipment verification ("PSV") for reasons outside of the U.S. Government's control." Ms. Wysong said she was not able to answer the question at the briefing, but invited exporters to send her an e-mail to ask for the legal authority citations.
Somehow I don't think there will be a line of folks e-mailing OEE for this information.
Do you have any insight into this issue?
Raider of the Lost Citation
I've looked in to this one ROTLC (great name by the way). I even checked my notes from the Update enforcement plenary, but I don't recall this particular exchange. That doesn't mean it didn't happen -- I could have missed something. But may I be so bold as to suggest that you may actually be referring to this bit of Q&A (quoting from my paraphrased notes here) which isn't exactly as you remember it:
Q: What is your authority in imposing denial orders (since the Export Administration Act is expired)?
A: We believe we have the authority, but there is pending litigation on this so we're going to punt to the chief counsel’s office.
The Update questioner was referring to the good old fashioned Denied Persons List not the relatively newfangled Unverified List. He was questioning the Commerce Department's authority to issue denial orders while operating under IEEPA. Now, there was some discussion of PSVs and PLCs elsewhere in the Q&A, but I don't recall the legal authority angle on those.
Does anyone have a different recollection? If so, make ROTLC's day and leave a comment using the link below.
UPDATE: Direct from the horse's mouth, attorney Michael Deal chimes in (from the comments section):
I am the fellow that asked that question: Specifically, I first observed that unlike the EAA, IEEPA had no specific authority for denial orders, and then noted that under the Administrative Procedures Act, agencies can not impose sanctions unless authorized by law. It may have been a tad unfair to ambush Wendy like that, but I wanted to make a point in a public way that in the absence of statutory authority, BIS can not impose denial orders under the expired EAA. Judge Bates' analysis in his opinion in October in the Quinn case in DC District court, to which Wendy alluded, while not directly on point, supports the general proposition that authorities in the EAA that are not expressly replicated in IEEPA can not be invoked through the "emergency" Executive Order continuing the EAR after the expiration of the EAA.
The portion of Judge Bates' opinion dealing with enforcement of the EAR under an expired EAA runs about ten pages, which you can read for yourself (pdf, start on p. 16). Ultimately, the court ruled against the government, granting the defendants motion to dismiss this charge:
...IEEPA -- whether or not it authorized the President to reissue other regulations promulgated under the EAR "as if they were issued" under IEEPA -- cannot confer authority on the President to promulgate regulations criminalizing conspiracies to violate trade embargoes when neither IEEPA nor the EAA, as written at the time of IEEPA's passage, supplies any basis for a conspiracy offense.
...In sum, the Court cannot sustain Count One of the indictment as consistent with IEEPA's grant of regulatory authority to the President, and therefore the Court will grant defendants' motion to dismiss Count One for failing to properly charge the offense of conspiracy. It is important to note that the Court is not saying that defendants could not be charged with conspiracy to violate trade embargo laws, for example under 18 U.S.C. § 371. But the indictment does not do so, and, as framed based on the EAR, Count One cannot survive.