BIS, DDTC, OFAC, and CBP Subpoenas and Requests for Information – Tips to Comply

By: By Olga Torres, Managing Member
Date: 10/31/2023

Receiving an administrative subpoena, summons, or other request for information from a federal U.S. agency can be surprising, but it is not an uncommon scenario in the trade world. The main agencies in charge of administering and enforcing U.S. trade laws each have the power to compel the disclosure of certain information or documentation that may be related to an agency’s enforcement of import, export, or economic sanctions regulations. However, the format and nature of the information requests vary between the agencies. This article will provide an overview of the types of information requests that may be issued by the Bureau of Industry and Security, the Directorate of Defense Trade Controls, the Office of Foreign Assets Control, and Customs and Border Protection.

The Bureau of Industry and Security

The Department of Commerce Bureau of Industry and Security (“BIS”) is authorized to issue administrative subpoenas under section 762.7 of the Export Administration Regulations (“EAR”). Specifically, BIS may ask persons located in the United States to produce documents and records required to be kept under any provision of the EAR. The recordkeeping provisions of the EAR require parties involved in transactions subject to the EAR to retain related records including export control documents, contracts, invitations to bid, and memoranda, or other correspondence related to a transaction. Importantly, these records must be kept for a period of five years from the date the related item(s) were exported, known to be reexported, transferred, transshipped, or diverted, or from the date a related transaction is terminated, whichever is later.1

According to 15 C.F.R. § 762.7, BIS may request the production of records as described above without issuing a formal administrative subpoena. BIS’s Office of Export Enforcement (“OEE”) encourages parties to voluntarily comply with such a request but may issue an administrative subpoena to compel production when “voluntary cooperation is not forthcoming.” The regulations suggest a subpoena may only come after a party’s refusal to cooperate with a more informal production request. However, in practice OEE often issues administrative subpoenas to parties as a first course of action. Thus, receiving an administrative subpoena from OEE is not always an indication that the individual or company is viewed as an uncooperative party.

Whether an administrative subpoena is issued as a first course of action or after a failure to voluntarily provide relevant information, all subpoenas should be taken seriously, and recipients should provide full and truthful responses. The Department of Commerce can petition a district court to enforce compliance with a subpoena if necessary. In addition, the receipt of an administrative subpoena can be an indication that BIS is initiating an investigation into a company or individual that could result in an enforcement action and fines if violations are discovered. As a practical matter, failure to timely respond to a subpoena can affect the way a subject is perceived by BIS and harm a party’s chances of receiving cooperation credit to mitigate any penalties that are assessed in the future.2

The Directorate of Defense Trade Controls

The Department of State Directorate of Defense Trade Controls (“DDTC”) can issue a Directed Disclosure to a party that the agency believes has or may have violated the International Traffic in Arms Regulations (“ITAR”). DDTC will issue a Directed Disclosure in letter format and expects recipients to respond according to the directions for the submission of voluntary disclosures set forth in 22 C.F.R. § 127.12.

A recipient of a Directed Disclosure should respond fully and truthfully to the request for information. Parties that make false or misleading statements may be prosecuted in the future, and failure to properly comply with the Directed Disclosure can result in fines. A party should be prepared to provide detailed information about how and why a subject violation occurred, the classification of the items involved in the relevant transactions, and documentation related to the relevant transactions for DDTC to reference.

Other than a few violations requiring mandatory disclosures, DDTC does not generally require voluntary disclosures of violations. However, failure to voluntarily disclose a violation will be treated as an adverse or aggravating factor in an enforcement action.3 Therefore, a party that does not voluntarily disclose a violation and subsequently receives a Directed Disclosure should keep in mind that fully complying with the information request and including information on corrective actions taken after the violation occurred may be helpful in mitigating the consequences of electing not to voluntarily disclose the violation. In addition, a Directed Disclosure concerning a certain transaction may alert a party to other transactions that constitute potential violations. As discussed previously regarding BIS information requests, a party should consider voluntarily disclosing newly discovered violations.

The Office of Foreign Assets Control

The Department of Treasury Office of Foreign Assets Control (“OFAC”) can compel the disclosure of relevant information or documentation by relevant parties pursuant to 31 C.F.R. § 501.602. This section provides that OFAC has the authority to issue subpoenas compelling the testimony of an individual or the production of documents including “books, contracts, letters, papers, and other hard copy or electronic documents relating to any matter under investigations.”

OFAC will issue an administrative subpoena to a party that may been involved in a transaction or activity that is prohibited under sanctions regulations, which can include the shipment of goods to a sanctioned nation, entity, or individual, providing certain services within a sanctioned nation, and engaging in a transaction with a sanctioned party. The types of documents and information OFAC will seek can vary depending on which sanctions regulations are implicated. However, OFAC will typically inquire into the frequency and time period that the suspected prohibited transactions took place and a subject’s role, either as an individual or as part of an involved entity, in the suspected prohibited transactions.

OFAC can require the production of a broad variety of documents, which can make responding to an administrative subpoena a burdensome task. In addition, it is not uncommon for a party that receives an administrative subpoena from OFAC to have had no knowledge that they (or someone else involved in the transaction) were engaged in potential violations of economic sanctions. Thus, part of responding to an OFAC administrative subpoena can include an internal review of relevant transactions to better understand why OFAC has initiated an investigation. Recipients of administrative subpoenas typically must respond within 30 days, so it will be important to communicate with relevant OFAC personnel, usually a representative from OFAC’s Office of Compliance and Enforcement (“OCE”) assigned to the case if there are reasons a deadline may not be met. The OCE representative can also be a helpful contact if questions arise regarding the format of a response and submission instructions.4

A party that has submitted a subpoena response should be prepared for follow-up questions from OFAC based on the information provided. Cooperating with OFAC in providing timely responses to a subpoena and any follow-up questions is good practice that can lead to potential mitigation of penalties in an enforcement action. Failure to comply with an administrative subpoena can result in a penalty of up to $27,520 when the information requested relates to a transaction(s) valued at or below $500,000, or a penalty of up to $68,801 where the related transaction(s) is valued above $500,000. Notably, a failure to provide required information can be considered an “ongoing violation” by OFAC with a new penalty imposed each month that a party fails to comply.5 An OFAC administrative subpoena may also be judicially enforced by a U.S. district court when a party fails to comply.

Customs and Border Protection

Under Title 19, Section 1509 of the United States Code (“U.S.C.”), Customs and Border Protection (“CBP”), an agency within the Department of Homeland Security (“DHS”), has the authority to request information or compel the production of certain records related to the entry of merchandise into the United States. CBP will issue a request for information or records pursuant to an inquiry or investigation conducted to determine whether an entry has been made correctly, ascertain the amount in duties owed, and/or ensure compliance with relevant Customs laws.

CBP can exercise its authority to compel the provision of information or records in a few different ways but does so most often by issuing a Request for Information (CBP Form 28), commonly referred to as a CF-28. As discussed in our previous article on CF-28s, this information request is typically issued by CBP when it finds that an importer’s entry paperwork is incomplete, has inaccuracies, or does not provide sufficient information for CBP to properly appraise the value and final classification of the merchandise.6 A CF-28 can request that an importer provide a variety of information including details on the valuation and classification of a product, or documentation related to a product’s country of origin. An importer may also be asked to provide product samples to CBP. Importantly, an importer must respond to a CF-28 within 30 days of receipt. A failure to respond can result in a penalty of up to $100,000 or 75% of the appraised value of the merchandise (whichever is less) for a willful failure to comply, or up to $10,000 or 40% of the appraised value of the merchandise (whichever is less) for a negligent failure to comply.7

It is important to keep in mind that preparing a sufficient response to a CF-28 can take a substantial amount of time depending on the nature of the information requested. An importer will most likely need to coordinate with other parties like its suppliers, customs broker, legal counsel, or internal record-keeping personnel to provide the requested information and/or documentation to CBP. Thus, in some cases a CF-28 recipient may need to request a deadline extension by submitting a request to CBP with an explanation of the circumstances necessitating an extension.

Another way that CBP can obtain information or documentation is by issuing a summons on a subject party. 19 U.S.C. § 1509 authorizes CBP to issue a summons to an importer or third-party that has custody of records related to a relevant import transaction, and the regulations governing summons procedures are set forth in 19 C.F.R. § 163.7. Unlike a CF-28, a summons may require a recipient to appear before a customs officer to provide testimony under oath. A summons may also compel the production of documents in lieu of, or in addition to, providing testimony. A recipient party can expect a summons to identify the customs officer issuing the summons and the officer before whom a required appearance will take place. A date and time for the required appearance will also be provided in the document.

A summons can be issued at any point during a CBP investigation, inquiry, or audit, and in some cases will be issued when a party fails to respond to a CF-28. Notably, the issuance of a penalty for failure to respond to an earlier request for information by CBP (e.g., a CF-28) will not preclude CBP’s ability to issue a summons and seek its enforcement. A summons issued by CBP is similar to an administrative subpoena issued by BIS in that it is ultimately a more formal way for the agency to obtain pertinent information, sometimes indicating that a more serious investigation is being conducted by the agency. In addition, a compliance with a CBP summons is mandatory and can be enforced by a U.S. district court.8

Importantly, 19 U.S.C. § 1509 limits CBP’s use of a summons to investigations that relate to import entries, fees, duties, and taxes owed to the United States, or compliance with laws administered by CBP. CBP is clearly authorized to issue a summons to parties that may have information related to violations of U.S. import regulations. However, its authority to issue a summons related to other types of violations (e.g., export controls or economic sanctions) is not as defined. Therefore, a recipient of a summons that requests information unrelated to import transactions may need to consult legal counsel to determine if the summons should be challenged as exceeding CBP’s scope of authority under 19 U.S.C. §1509.

Proceed with Caution When Responding

A recipient of an information request from one of the agencies discussed above is generally required to respond. However, a subject party should be careful not to over respond to one of these requests. It is always a good idea to review the scope of an information request and be deliberate in responding within those parameters. While compliance with an information request is important, providing more information than is required can lead to more questions from the agencies and an expanded investigation. Therefore, a respondent should take the time to figure out why an information request was received and have internal discussions with relevant personnel to gain an understanding of the situation before submitting a response. In addition, it may be beneficial to have external counsel review the request and relevant factual information to provide guidance on how best to respond to a request and identify associated legal risks. External counsel is also typically familiar with relevant agency rules, guidelines, and common practices related to the various types of information requests and can assist with the preparation of documents and responses for submission.


If you have received an information request such as those discussed above and have questions or need assistance with responding, please feel free to contact the attorneys at Torres Trade Law, PLLC.

1 15 C.F.R. §762.6(a).

2 See 15 C.F.R. Part 766, Supp. 2.

3 See 22 C.F.R. § 127.12(a).

4 See Office of Foreign Assets Control, Data Delivery Standards Guidance: Preferred Practices for Productions to OFAC, available at (last visited Oct. 6, 2023).

5 See 31 C.F.R. Part 501, App. A.

6 CBP may also issue a CF-29 Notice of Action when there is missing information or mistakes in an import entry. A CF-29 typically is issued after a party receives a CF-28 and fails to provide sufficient information but may also be issued in lieu of a CF-28 when problems are already apparent. A CF-29 can (1) notify a party that CBP is taking action regarding a subject entry (such as assessing additional duties owed), or (2) provide a proposed action allowing a recipient party 20 days to respond or dispute the proposal.

7 19 C.F.R. § 163.6(b).

8 See 19 C.F.R. §§ 163.7 & 163.8.