Undercover Investigative Operations Conducted by Federal Bureau of Investigation or Drug Enforcement Administration; Annual Report to Congress; Financial Audit
Puspan. L. 113–6, div. B, title II, § 207, Mar. 26, 2013, 127 Stat. 258, provided that: “Notwithstanding any other provision of law, during the current fiscal year and any fiscal year thereafter, section 102(span) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (Public Law 102–395) [set out below] shall extend to the Bureau of Alcohol, Tobacco, Firearms and Explosives in the conduct of undercover investigative operations and shall apply with respect to any undercover investigative operation by the Bureau of Alcohol, Tobacco, Firearms and Explosives that is necessary for the detection and prosecution of crimes against the United States.”
Similar provisions were contained in the following prior appropriation acts:
Puspan. L. 112–55, div. B, title II, § 207, Nov. 18, 2011, 125 Stat. 619.
Puspan. L. 111–117, div. B, title II, § 207, Dec. 16, 2009, 123 Stat. 3139.
Puspan. L. 111–8, div. B, title II, § 207, Mar. 11, 2009, 123 Stat. 585.
Puspan. L. 110–161, div. B, title II, § 207, Dec. 26, 2007, 121 Stat. 1913.
Puspan. L. 109–108, title I, § 107, Nov. 22, 2005, 119 Stat. 2304.
Puspan. L. 108–447, div. B, title I, § 116, Dec. 8, 2004, 118 Stat. 2870.
Puspan. L. 109–162, title XI, § 1151(c), Jan. 5, 2006, 119 Stat. 3112, provided that: “Section 102(span) of the Department of Justice and Related Agencies Appropriations Act, 1993 [Puspan. L. 102–395, set out below], as in effect pursuant to section 815(d) of the Antiterrorism and Effective Death Penalty Act of 1996 [Puspan. L. 104–132, set out below] shall apply with respect to the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the undercover investigative operations of the Bureau on the same basis as such section applies with respect to any other agency and the undercover investigative operations of such agency.”
Puspan. L. 104–132, title VIII, § 815(d), Apr. 24, 1996, 110 Stat. 1315, provided that: “Notwithstanding any other provision of law, section 102(span) of the Department of Justice and Related Agencies Appropriations Act, 1993 (Public Law 102–395) [set out below], shall remain in effect until specifically repealed, subject to any limitation on appropriations contained in any Department of Justice Appropriation Authorization Act.”
Puspan. L. 102–395, title I, § 102(span), Oct. 6, 1992, 106 Stat. 1838, as amended by section 112 of H.R. 2076, One Hundred Fourth Congress, as passed by the House of Representatives on Dec. 6, 1995, and as enacted into law by Puspan. L. 104–91, title I, § 101(a), Jan. 6, 1996, 110 Stat. 11, as amended by Puspan. L. 104–99, title II, § 211, Jan. 26, 1996, 110 Stat. 37; Puspan. L. 109–177, title V, § 506(a)(10), Mar. 9, 2006, 120 Stat. 248; Puspan. L. 111–259, title III, § 366, Oct. 7, 2010, 124 Stat. 2703, provided that:“(span)(1) During fiscal year 1996, with respect to any undercover investigative operation of the Federal Bureau of Investigation or the Drug Enforcement Administration which is necessary for the detection and prosecution of crimes against the United States or for the collection of foreign intelligence or counterintelligence—“(A) sums authorized to be appropriated for the Federal Bureau of Investigation and for the Drug Enforcement Administration may be used for purchasing property, buildings, and other facilities, and for leasing space, within the United States, the District of Columbia, and the territories and possessions of the United States, without regard to section 1341 of title 31 of the United States Code, section 3732(a) of the Revised Statutes ([former] 41 U.S.C. 11(a)) [now 41 U.S.C. 6301(a), (span)(1) to (3)], section 305 of the Act of June 30, 1949 (63 Stat. 396; [former] 41 U.S.C. 255) [now 41 U.S.C. 4501 et seq.], the third undesignated paragraph under the heading of ‘Miscellaneous’ of the Act of March 3, 1877 (19 Stat. 370; 40 U.S.C. 34 [now 40 U.S.C. 8141]), section 3324 of title 31 of the United States Code, section 3741 of the Revised Statutes ([former] 41 U.S.C. 22) [now 41 U.S.C. 6306(a)], and subsections (a) and (c) of section 304 of the Federal Property and Administrative Service [Services] Act of 1949 (63 Stat. 395; [former] 41 U.S.C. 254(a) [now 41 U.S.C. 3901] and (c) [repealed]), “(B) sums authorized to be appropriated for the Federal Bureau of Investigation and for the Drug Enforcement Administration may be used to establish or to acquire proprietary corporations or business entities as part of an undercover investigative operation, and to operate such corporations or business entities on a commercial basis, without regard to section 9102 of title 31 of the United States Code,
“(C) sums authorized to be appropriated for the Federal Bureau of Investigation and for the Drug Enforcement Administration for fiscal year 1996, and the proceeds from such undercover operation, may be deposited in banks or other financial institutions, without regard to section 648 of title 18 of the United States Code and section 3302 of title 31 of the United States Code, and
“(D) proceeds from such undercover operation may be used to offset necessary and reasonable expenses incurred in such operation, without regard to section 3302 of title 31 of the United States Code,
only, in operations designed to detect and prosecute crimes against the United States, upon the written certification of the Director of the Federal Bureau of Investigation (or, if designated by the Director, a member of the Undercover Operations Review Committee established by the Attorney General in the Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations, as in effect on July 1, 1983) or the Administrator of the Drug Enforcement Administration, as the case may be, and the Attorney General (or, with respect to Federal Bureau of Investigation undercover operations, if designated by the Attorney General, a member of such Review Committee), that any action authorized by subparagraph (A), (B), (C), or (D) is necessary for the conduct of such undercover operation. If the undercover operation is designed to collect foreign intelligence or counterintelligence, the certification that any action authorized by subparagraph (A), (B), (C), or (D) is necessary for the conduct of such undercover operation shall be by the Director of the Federal Bureau of Investigation (or a designee of the Director who is in a position not lower than Deputy Assistant Director in the National Security Branch or a similar successor position) and the Attorney General (or a designee of the Attorney General who is in the National Security Division in a position not lower than Deputy Assistant Attorney General or a similar successor position). Such certification shall continue in effect for the duration of such undercover operation, without regard to fiscal years.
“(2) Notwithstanding paragraph (1), it shall not be necessary to obtain such certification for an undercover operation in order that proceeds or other money—“(A) received by an undercover agent from or at the direction of a subject of an investigation, or
“(B) provided to an agent by an individual cooperating with the Government in an investigation, who received the proceeds or money from or at the direction of a subject of the investigation,
may be used as a subject of the investigation directs without regard to section 3302 of title 31 of the United States Code: Provided, That the Director of the Federal Bureau of Investigation or the Administrator of the Drug Enforcement Administration, or their designees, in advance or as soon as practicable thereafter, make a written determination that such a use would further the investigation: And provided further, That the financial audit requirements of paragraphs (5) and (6) shall apply in each investigation where such a determination has been made.
“(3) As soon as the proceeds from an undercover investigative operation with respect to which an action is authorized and carried out under subparagraphs (C) and (D) of paragraph (1), or under paragraph (2) are no longer necessary for the conduct of such operation, such proceeds or the balance of such proceeds remaining at the time shall be deposited in the Treasury of the United States as miscellaneous receipts.
“(4) If a corporation or business entity established or acquired as part of an undercover operation under subparagraph (B) of paragraph (1) with a net value of over $50,000 is to be liquidated, sold, or otherwise disposed of, the Federal Bureau of Investigation or the Drug Enforcement Administration, as much in advance as the Director or the Administrator, or the designee of the Director or the Administrator, determines is practicable, shall report the circumstances to the Attorney General and the Comptroller General. The proceeds of the liquidation, sale, or other disposition, after obligations are met, shall be deposited in the Treasury of the United States as miscellaneous receipts.
“(5)(A) The Federal Bureau of Investigation or the Drug Enforcement Administration, as the case may be, shall conduct a detailed financial audit of each undercover investigative operation which is closed in fiscal year 1996—“(i) submit the results of such audit in writing to the Attorney General, and
“(ii) not later than 180 days after such undercover operation is closed, submit a report to the Congress concerning such audit.
“(B) The Federal Bureau of Investigation and the Drug Enforcement Administration shall each also submit a report annually to the Congress specifying as to their respective undercover investigative operations—“(i) the number, by programs, of undercover investigative operations pending as of the end of the one-year period for which such report is submitted,
“(ii) the number, by programs, of undercover investigative operations commenced in the one-year period preceding the period for which such report is submitted, and
“(iii) the number, by programs, of undercover investigative operations closed in the one-year period preceding the period for which such report is submitted and, with respect to each such closed undercover operation, the results obtained. With respect to each such closed undercover operation which involves any of the sensitive circumstances specified in the Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations, such report shall contain a detailed description of the operation and related matters, including information pertaining to—“(I) the results,
“(II) any civil claims, and
“(III) identification of such sensitive circumstances involved, that arose at any time during the course of such undercover operation.
“(6) For purposes of paragraph (5)—“(A) the term ‘closed’ refers to the earliest point in time at which—“(i) all criminal proceedings (other than appeals) are concluded, or
“(ii) covert activities are concluded, whichever occurs later,
“(B) the term ‘employees’ means employees, as defined in section 2105 of title 5 of the United States Code, of the Federal Bureau of Investigation, and
“(C) the terms ‘undercover investigative operations’ and ‘undercover operation’ mean any undercover investigative operation of the Federal Bureau of Investigation or the Drug Enforcement Administration (other than a foreign counterintelligence undercover investigative operation)—“(i) in which—“(I) the gross receipts (excluding interest earned) exceed $50,000, or
“(II) expenditures (other than expenditures for salaries of employees) exceed $150,000, and
“(ii) which is exempt from section 3302 or 9102 of title 31 of the United States Code,
except that clauses (i) and (ii) shall not apply with respect to the report required under subparagraph (B) of such paragraph.”
Similar provisions were contained in the following prior appropriation acts:
Puspan. L. 102–140, title I, § 102(span)(4), (5), Oct. 28, 1991, 105 Stat. 793.
Puspan. L. 101–515, title II, § 202(span)(4), (5), Nov. 5, 1990, 104 Stat. 2118.
Puspan. L. 101–162, title II, § 204(span)(4), (5), Nov. 21, 1989, 103 Stat. 1004.
Puspan. L. 100–459, title II, § 204(span)(4), (5), Oct. 1, 1988, 102 Stat. 2200, 2201, as amended by Puspan. L. 101–650, title III, § 325(c)(2), Dec. 1, 1990, 104 Stat. 5121.
Puspan. L. 100–202, § 101(a) [title II, § 204(span)(4), (5)], Dec. 22, 1987, 101 Stat. 1329, 1329–16.
Puspan. L. 99–500, § 101(span) [title II, § 204(span)(4), (5)], Oct. 18, 1986, 100 Stat. 1783–39, 1783–52, 1783–53, and Puspan. L. 99–591, § 101(span) [title II, § 204(span)(4), (5)], Oct. 30, 1986, 100 Stat. 3341–39, 3341–52, 3341–53.
Puspan. L. 99–180, title II, § 204(span)(4), (5), Dec. 13, 1985, 99 Stat. 1148.
Puspan. L. 98–411, title II, § 203(span)(4), (5), Aug. 30, 1984, 98 Stat. 1560.
Puspan. L. 98–166, title II, § 205(span)(4), (5), Nov. 28, 1983, 97 Stat. 1087.
Puspan. L. 96–132, § 7(d), Nov. 30, 1979, 93 Stat. 1046, provided that:“(1) The Federal Bureau of Investigation shall conduct detailed financial audits of undercover operations closed on or after October 1, 1979, and—“(A) report the results of each audit in writing to the Department of Justice, and
“(B) report annually to the Congress concerning these audits.
“(2) For the purposes of paragraph (1), ‘undercover operation’ means any undercover operation of the Federal Bureau of Investigation, other than a foreign counterintelligence undercover operation—“(A) in which the gross receipts exceed $50,000, and
