Short title

This Act may be cited as the

Export Administration Renewal Act of 2005

Congressional declaration of policy

Section 3(a) of the Export Administration Act of 1979 (50 U.S.C. App. 2402(a)) is amended by adding at the end the following new paragraph:

(15)It is the policy of the United States to utilize the analytic product of the United States intelligence community with respect to the consideration of any proposed license under this Act.

General provisions

Section 4 of the Export Administration Act of 1979 (50 U.S.C. App. 2403) is amended by adding at the end the following new subsection:

(h)

Commodity classification review

The President, in consultation with the Secretary and the heads of other appropriate departments and agencies, shall conduct a comprehensive review of the commodity classification process and the Export Control Classification Number (in this Act referred to as the ECCN) system, taking into account— (1)the potential relevance of industrial technical literature to ECCN classifications; (2)the extent of review for ECCN classifications; (3)consistency between United States ECCN definitions and multilateral export control regime control lists; (4)any other applicable laws such as the Arms Export Control Act; and (5)other appropriate considerations, including the global war on terror.

National security controls

Section 5(f)(6) of the Export Administration Act of 1979 (50 U.S.C. App. 2404(f)(6)) is amended by striking Under Secretary of Commerce for Export Administration and inserting Under Secretary of Commerce for Industry and Security.

Violations

Section 11 of the Export Administration Act of 1979 (50 U.S.C. App. 2410) is amended— (1)by striking subsections (a) and (b) and inserting the following:

(a)

Criminal penalties

(1)

Violations by an individual

Any individual who willfully violates, conspires to violate, or attempts to violate any provision of this Act or any regulation, license, or order issued under this Act shall be fined up to 10 times the value of the exports involved or $1,000,000, whichever is greater, imprisoned for not more than 10 years, or both, for each violation. (2)

Violations by a person other than an individual

Any person, other than an individual, who willfully violates, conspires to violate, or attempts to violate any provision of this Act or any regulation, license, or order issued under this Act shall be fined up to 10 times the value of the exports involved or $5,000,000, whichever is greater, for each violation. (b)

Forfeiture of property interest and proceeds

(1)

Forfeiture

Any person who is convicted under paragraph (1) or (2) of subsection (a) shall, in addition to any other penalty, forfeit to the United States— (A)any of that person’s security or other interest in, claim against, or property or contractual rights of any kind in the tangible items that were the subject of the violation; (B)any of that person’s security or other interest in, claim against, or property or contractual rights of any kind in the tangible property that was used in the export or attempt to export that was the subject of the violation; and (C)any of that person’s property constituting, or derived from, any proceeds obtained directly or indirectly as a result of the violation. (2)

Procedures

The procedures in any forfeiture under this subsection, and the duties and authority of the courts of the United States and the Attorney General with respect to any forfeiture action under this subsection, or with respect to any property that may be subject to forfeiture under this subsection, shall be governed by the provisions of chapter 46 of title 18, United States Code (relating to criminal forfeiture), to the same extent as property subject to forfeiture under that chapter.

;

(2)in subsection (c), by striking paragraph (1) and inserting the following: (1) The Secretary may impose a civil penalty of up to $500,000 for each violation of a provision of this Act or any regulation, license, or order issued under this Act. A civil penalty under this paragraph may be in addition to, or in lieu of, any other liability or penalty which may be imposed for such a violation.; (3)by striking subsections (g) and (h) and inserting the following:

(g)

Violations defined by regulation

Nothing in this section shall limit the authority of the Secretary to define by regulation violations under this Act. (h)

Effect of other convictions

(1)

Denial of export privileges

Any person convicted of a violation described in paragraph (2) may, at the discretion of the Secretary, be denied export privileges under this Act for a period not to exceed 10 years from the date of the conviction. The Secretary may also revoke any export license under this Act in which such person had an interest at the time of the conviction. (2)

Violations

The violations referred to in paragraph (1) are a violation of— (A)a provision of this Act; (B)a provision of the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.); (C)section 793, 794, or 798 of title 18, United States Code; (D)section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)); (E)section 38 of the Arms Export Control Act (22 U.S.C. 2778); (F)section 16 of the Trading with the Enemy Act (50 U.S.C. App. 16); (G)any regulation, license, or order issued under any provision of law listed in subparagraph (A), (B), (C), (D), (E), or (F); (H)section 371 or 1001 of title 18, United States Code, if in connection with the export of items subject to this Act or any regulation, license, or order issued under the International Emergency Economic Powers Act, or the export of items controlled under the Arms Export Control Act; (I)section 175 of title 18, United States Code; (J)a provision of the Atomic Energy Act (42 U.S.C. 201 et seq.); (K)section 831 of title 18, United States Code; or (L)section 2332a of title 18, United States Code. (3)

Related persons

The Secretary may exercise the authority under paragraph (1) with respect to any person related through affiliation, ownership, control, or position of responsibility to a person convicted of any violation of a law set forth in paragraph (2), upon a showing of such relationship with the convicted person. The Secretary shall make such showing only after providing notice and opportunity for a hearing.

; and

(4)by adding at the end the following new subsection:

(j)

Statute of limitations

(1)

In general

Except as provided in paragraph (2), a proceeding in which a civil penalty or other administrative sanction is sought under subsection (c) may not be commenced more than 5 years after the date on which the claim first accrued. (2)

Exception

(A)

Tolling

In any case in which a criminal indictment in connection with actions constituting a violation under subsection (a) is returned within the time limits prescribed by law for the institution of such action, the limitation under paragraph (1) for commencing a proceeding to impose a civil penalty or other administrative sanction under this section shall, upon the return of the criminal indictment, be tolled against any person named as a defendant. (B)

Duration

The tolling of the limitation with respect to a defendant under subparagraph (A) as a result of a criminal indictment shall continue for a period of 6 months beginning on the date on which the defendant is convicted pursuant to the criminal indictment, the indictment against the defendant is dismissed, or the criminal action has otherwise concluded.

United States policy on multilateral export control regimes

The Export Administration Act of 1979 is amended by inserting after section 11C the following new section:

11D.

U.S. Policy on Multilateral Export Control Regimes

(a)

Multilateral export control regimes

(1)

General policy

It is the policy of the United States to seek multilateral arrangements that support the national security objectives of the United States. (2)

Multilateral export control regimes

In this section, the term multilateral export control regime means an international agreement or arrangement among two or more countries, including the United States, a purpose of which is to coordinate national export control policies of its members regarding certain items. The term includes regimes such as the Australia Group (AG), the Wassenaar Arrangement, the Missile Technology Control Regime (MTCR), and the Nuclear Suppliers Group Dual Use Arrangement (NSG). (3)

Objectives

It is the intent of the Congress that the United States seek to achieve the following objectives with regard to multilateral export control regimes: (A)

Existing regimes

(i)

Participation

Continue its active participation in existing multilateral export control regimes, in accordance with subsection (b). (ii)

Strengthen

Seek to attain the cooperation of members of each existing and future regime in implementing the standards outlined in subsection (c) for effective national export control systems. (B)

New regimes

Consider participation in additional multilateral export control regimes if such participation would serve the national security interests of the United States. (C)

Review and update

Review and update multilateral regime export control lists with other members, taking into account— (i)national security concerns, including the global war on terror; (ii)the foreign availability of items; and (iii)the costs and benefits of controls. (D)

Implementation by nonmembers

Encourage countries that are not members of the multilateral export control regime— (i)to strengthen their national export control regimes and improve enforcement; (ii)to adhere to the guidelines of the appropriate multilateral export control regime; (iii)not to undermine an existing multilateral export control regime by exporting controlled items in a manner inconsistent with the guidelines of the regime; and (iv)to work with member countries in training government officials on the principles and procedures for implementing effective export controls. (4)

Transparency of multilateral export control regimes

(A)

Publication of information on each existing regime

Not later than 120 days after the date of the enactment of this section, the Secretary shall, for each multilateral export control regime, to the extent that it is not inconsistent with the arrangements of that regime (in the judgment of the Secretary of State) or with the national interest, publish in the Federal Register and post on the Department of Commerce website the following information with respect to that regime: (i)The purposes of the regime. (ii)The members of the regime. (iii)The export licensing policy of the regime. (iv)The items that are subject to export controls under the regime, together with all related public notes, and all changes thereto. (v)Any countries, end uses, or end users that are subject to the export controls of the regime. (vi)Rules of interpretation. (vii)Major policy actions. (viii)The rules and procedures of the regime for establishing and modifying any matter described in clauses (i) through (vii). (B)

New regimes

Not later than 60 days after the United States joins or organizes a new multilateral export control regime, the Secretary shall, to the extent that it is not inconsistent with arrangements under that regime (in the judgment of the Secretary of State) or with the national interest, publish in the Federal Register and post on the Department of Commerce website the information described in subparagraphs (i) through (viii) of subparagraph (A) with respect to the regime. (C)

Publication of changes

Not later than 60 days after a multilateral export control regime adopts any change in the information published under this paragraph, the Secretary shall, to the extent not inconsistent with the arrangements under that regime (in the judgment of the Secretary of State) or the national interest, publish such changes in the Federal Register and post such changes on the Department of Commerce website. (b)

Standards for multilateral export control regimes

It is the intent of the Congress that the President take steps to establish the following features in any multilateral export control regime in which the United States is participating or may participate: (1)

Full membership

Supplier countries should be considered for membership of the regime based on their acting in accordance with the objectives and meeting the membership criteria of the regime. (2)

Effective implementation

The regime promotes implementation of the regime’s rules and guidelines. (3)

Public understanding

The regime seeks to enhance public understanding of the purpose and procedures of the regime. (4)

Effective interpretation procedures

The regime has procedures to promote the uniform and consistent interpretation of its rules and guidelines. (5)

Enhanced cooperation with regime nonmembers

There is agreement among the members of the regime— (A)to cooperate with governments of countries that are not members of the regime to restrict the export of items controlled by the regime; and (B)to establish an ongoing mechanism in the regime to coordinate planning and implementation of export control measures related to such cooperation. (6)

Periodic high level meetings

There are regular periodic meetings of high level representatives of the governments of countries that are members of the regime for the purpose of coordinating export control policies and issuing policy guidance to members of the regime. (7)

Common list of controlled items

There is agreement on a common list of items controlled by the regime. (8)

Regular updates of common list

There is a procedure for removing items from the list of controlled items when the control of such items no longer serves the objectives of the members of the regime, and for adding items to the list of controlled items when appropriate in light of the objectives of the regime. (9)

Global war on terror

There is agreement— (A)to prevent the export or diversion of sensitive items to terrorist individuals and groups; and (B)to support the United States and its international partners in the global war on terror. (10)

Coordination of license approval procedures

There is coordination among the members of the regime regarding their national export license approval procedures, practices, and standards. (11)

Undercutting

The regime establishes rules with respect to the approval of licenses for the export of any item that is controlled pursuant to the regime, in cases in which a member has denied an export license for such item to the particular end user for reasons that are relevant to the purposes of the regime. (12)

Information sharing

There are procedures for the coordination and exchange of information about export licensing among members of the regime, including— (A)notification of the denial of licenses to export sensitive items controlled under the regime to countries that are not members of the regime, in cases in which the reasons for denial are relevant to the purposes of the regime; and (B)notification of applications for licenses to export goods and technology that are destined for terrorist organizations or individuals. (c)

Standards for national export control systems

It is the intent of the Congress that the President take steps to attain the cooperation of members of each multilateral export control regime in implementing effective national export control systems in accordance with the following: (1)

Export control laws

Enforcement authority, civil and criminal penalties, and statutes of limitations are sufficient to deter potential violations and punish violators under the member’s export control laws. (2)

License approval process

The system for evaluating export license applications includes sufficient technical expertise to assess the licensing status of exports and ensure the reliability of end users. (3)

Enforcement

The enforcement mechanism provides authority for trained enforcement officers to investigate and prevent illegal exports. (4)

Documentation

There is a system of export control documentation and verification with respect to controlled items. (5)

Information

There are procedures for the coordination and exchange of information concerning licensing, end users, and enforcement with other members of the multilateral export control regime. (6)

Resources

The member has devoted adequate resources to administer and enforce effectively the authorities, systems, mechanisms, and procedures described in paragraphs (1) through (5). (d)

Support of other countries’ export control systems

The Secretary is encouraged to continue to— (1)participate in training of, and provide training to, officials of other countries on the principles and procedures for implementing effective export controls; and (2)participate in any such training provided by other departments and agencies of the United States. (e)

Annual reports to Congress

(1)

On each multilateral export control regime

Not later than February 1 of each year, the President shall submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on International Relations of the House of Representatives a report evaluating— (A)the purpose and objectives of each multilateral export control regime; (B)the effectiveness of each multilateral export control regime, including an assessment of the steps undertaken pursuant to subsections (c) and (d), in meeting those objectives; (C)any proposals or actions made by the United States to change the regime’s control list; (D)the response or position of the other regime members to any such proposal or action made by the United States; and (E)the overall responsiveness of the regime to any such action or proposal made by the United States. (2)

Classification

The reports, or any part of the reports, under this subsection may be submitted in classified form to the extent the President considers necessary.

Enforcement

Section 12 of the Export Administration Act of 1979 (50 U.S.C. App. 2411) is amended— (1)in subsection (a)— (A)by striking paragraphs (1), (2), (3), and (4) and inserting the following:

(a)

General authority

(1)To the extent necessary or appropriate to the enforcement of this Act or to the imposition of any penalty, forfeiture, or liability arising under this Act— (A)the head of any department or agency exercising any function under this Act (and officers or employees of such department or agency specifically designated by the head thereof) may conduct investigations within the United States; (B)the Secretary of Homeland Security (and officers or employees of U.S. Immigration and Customs Enforcement specifically designated by the Secretary of the Department of Homeland Security) and the Secretary (and officers and employees of the Office of Export Enforcement of the Department of Commerce specifically designated by the Secretary) may conduct investigations outside of the United States; (C)the head of any such department or agency (and such officers or employees) may obtain information from, require reports or the keeping of records by, inspect the books, records, and other writings, premises, or property of, and take the sworn testimony of, any person; (D) (i)such officers or employees may administer oaths or affirmations, and may by subpoena require any person to appear and testify or to appear and produce books, records, and other writings, or both; and (ii)in the case of contumacy by, or refusal to obey a subpoena issued to, any such person, a district court of the United States, after notice to any such person and hearing, shall have jurisdiction to issue an order requiring such person to appear and give testimony or to appear and produce books, records, and other writings, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof; and (E)the Secretary (and officers or employees of the Department of Commerce designated by the Secretary) may conduct, outside the United States, pre-license investigations and post-shipment verifications of items licensed for export. (2) (A)Subject to subparagraph (B), U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection are authorized, in the enforcement of this Act— (i)to search, detain (after search), and seize goods or technology at those places outside the United States where such entities are authorized, pursuant to agreements or other arrangements with other countries, to perform enforcement activities; and (ii)to conduct such activities at those ports of entry or exit from the United States where officers of U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection are authorized by law to conduct such activities. (B)An officer of U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection may do the following in carrying out enforcement authority under this Act: (i)Stop, search, and examine a vehicle, vessel, aircraft, or person on which or whom such officer has reasonable cause to suspect there are any goods or technology that has been, is being, or is about to be exported from the United States in violation of this Act. (ii)Search any package or container in which such officer has reasonable cause to suspect there are any goods or technology that has been, is being, or is about to be exported from the United States in violation of this Act. (iii)Detain (after search) or seize and secure for trial any goods or technology on or about such vehicle, vessel, aircraft, or person, or in such package or container, if such officer has probable cause to believe the goods or technology has been, is being, or is about to be exported from the United States in violation of this Act. (iv)Make arrests without warrant for any violation of this Act committed in his or her presence or view or if the officer has probable cause to believe that the person to be arrested has committed or is committing such a violation. (C)The arrest authority conferred by subparagraph (B)(iv) is in addition to any arrest authority under other laws. U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection may not detain for more than 20 days any shipment of goods or technology eligible for export without license application. In a case in which such detention is on account of a disagreement between the Secretary and the head of any other department or agency with export license authority under other provisions of law concerning the export license requirements for such goods or technology, such disagreement shall be resolved within that 20-day period. At the end of that 20-day period, U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection (as the case may be) shall either release the goods or technology, or seize the goods or technology as authorized by other provisions of law. (3) (A)Subject to subparagraph (B)— (i)the Secretary shall have the responsibility for the enforcement of section 8; (ii)in the enforcement of the other provisions of this Act, the Secretary is authorized to search, detain (after search), and seize goods or technology— (I)at those places within the United States other than those ports specified in paragraph (2)(A); and (II)at those places outside the United States where the Office of Export Enforcement of the Department of Commerce, pursuant to agreements or other arrangements with other countries, is authorized to perform enforcement activities; (iii)the search, detention (after search), or seizure of goods or technology at those ports and places specified in paragraph (2)(A) may be conducted by officers or employees of the Department of Commerce designated by the Secretary, with the concurrence of U.S. Customs and Border Protection; and (iv)enforcement activities conducted outside the United States, except for pre-license investigations and post-shipment verifications, shall be undertaken in coordination with U.S. Immigration and Customs Enforcement. (B)The Secretary may designate any employee of the Office of Export Enforcement of the Department of Commerce to do the following in carrying out the enforcement authority conferred by this Act: (i)Execute any warrant or other process issued by a court or officer of competent jurisdiction. (ii)Make arrests without warrant for any offense against the United States committed in such officer’s presence or view or any felony offense against the United States if such officer has probable cause to believe that the person to be arrested has committed or is committing that felony offense. (iii)Carry firearms. (4)The authorities conferred by the Export Administration Renewal Act of 2005 under paragraph (3) shall be exercised consistent with guidelines approved by the Attorney General.

;

(B)by striking paragraphs (6) and (7); (C)by striking paragraph (8) and inserting the following:

(6) (A)The Secretary, in consultation with the technical advisory committees established under section 5(h) and exporters, shippers, trade facilitators, freight forwarders, and reexporters representative of their respective industries, shall continue to publish and update best practices guidelines to help those industries develop and implement, on a voluntary basis, effective export control programs in compliance with this Act. (B)The existence of an effective export compliance program and high quality overall export compliance efforts is one factor which ordinarily should be accorded great weight as a mitigating factor in civil penalty enforcement actions under this Act. (7)For purposes of this section, a reference to the enforcement of this Act or to a violation of this Act includes a reference to the enforcement or a violation of any regulation, order, or license issued under this Act, and the enforcement or violation of the Export Administration Regulations as maintained and amended under the authority of the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), or any order or license issued pursuant to those regulations.

;

(2)in subsection (c)— (A)by striking (c) Confidentiality and all that follows through paragraph (2) and inserting the following:

(c)

Confidentiality of Information

(1)

Exemptions from disclosure

(A)

Information obtained on or before June 30, 1980

Except as otherwise provided by the third sentence of section 8(b)(2) and by section 11(c)(2)(C), information obtained under this Act, or any predecessor statute, on or before June 30, 1980, which is deemed confidential, including Shipper’s Export Declarations, or with respect to which a request for confidential treatment is made by the person furnishing such information, shall not be subject to disclosure under section 552 of title 5, United States Code, and such information shall not be published or disclosed, unless the Secretary determines that the withholding thereof is contrary to the national interest. (B)

Information obtained after June 30, 1980

Except as otherwise provided by the third sentence of section 8(b)(2) and by section 11(c)(2)(C), information obtained under this Act after June 30, 1980, or under the Export Administration Regulations as maintained and amended under the authority of the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), may be withheld from disclosure only to the extent permitted by statute, except that information submitted or obtained in connection with an application for an export license, other export authorization (or recordkeeping or reporting requirement), enforcement activity, or other operations under this Act, or under the Export Administration Regulations as maintained and amended under the authority of the International Emergency Economic Powers Act, including— (i)the export license or other export authorization itself, (ii)classification requests described in section 10(l), (iii)information or evidence obtained in the course of any investigation by an employee or officer of the Department of Commerce or any other department or agency of the United States, (iv)information obtained or furnished under section 5 or 6 in connection with any international agreement, treaty, or other obligation, and (v)information obtained in any investigation of an alleged violation of section 8, except for information required to be disclosed by section 8(b)(2),

shall be withheld from public disclosure and shall not be subject to disclosure under section 552 of title 5, United States Code, unless the release of such information is determined by the Secretary to be in the national interest.

(2)

Information to the Congress and the GAO

(A)

In general

Nothing in this Act shall be construed as authorizing the withholding of information from the Congress or from the Government Accountability Office. (B)

Availability to the congress

(i)

In general

Any information obtained at any time under this Act or under any predecessor Act, or under the Export Administration Regulations as maintained and amended under the authority of the International Emergency Economic Powers Act, regarding the control of exports, including any report or license application required under this Act, shall be made available to any committee or subcommittee of Congress of appropriate jurisdiction upon the request of the chairman or ranking minority member of such committee or subcommittee. (ii)

Prohibition on further disclosure

No committee, subcommittee, or Member of Congress shall disclose any information obtained under this Act, under any predecessor Act, or under the Export Administration Regulations as maintained and amended under the authority of the International Emergency Economic Powers Act, regarding the control of exports that is submitted on a confidential basis to the Congress under clause (i) unless the full committee to which the information is made available determines that the withholding of that information is contrary to the national interest. (C)

Availability to gao

(i)

In general

Notwithstanding subparagraph (B), information described in paragraph (1) shall, consistent with the protection of intelligence, counterintelligence, and law enforcement sources, methods, and activities, as determined by the agency that originally obtained the information, and consistent with the provisions of section 716 of title 31, United States Code, be made available only by that agency, upon request, to the Comptroller General of the United States or to any officer or employee of the Government Accountability Office authorized by the Comptroller General to have access to such information. (ii)

Prohibition on further disclosure

No officer or employee of the Government Accountability Office shall disclose, except to the Congress in accordance with this subsection, any such information which is submitted on a confidential basis and from which any individual can be identified.

; and

(B)in paragraph (3)— (i)by striking (3) Any and inserting (3) Information sharing.—Any; (ii)by moving the text of paragraph (3) 2 ems to the right; and (iii)by striking Commissioner of Customs each place it appears and inserting Secretary of Homeland Security; and (3)by adding at the end the following new subsections:

(f)

Forfeiture

(1)

In general

Any tangible items lawfully seized under subsection (a) by designated officers or employees shall be subject to forfeiture to the United States. (2)

Applicable laws

Those provisions of law relating to— (A)the seizure, summary and judicial forfeiture, and condemnation of property for violations of the customs laws, (B)the disposition of such property or the proceeds from the sale thereof, (C)the remission or mitigation of such forfeitures, and (D)the compromise of claims,

shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this subsection, insofar as applicable and not inconsistent with this Act.

(3)

Forfeitures under customs laws

Duties that are imposed upon a customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws may be performed with respect to seizures and forfeitures of property under this subsection by the Secretary or any officer or employee of the Department of Commerce that may be authorized or designated for that purpose by the Secretary (or by the Under Secretary for Border and Transportation Security of the Department of Homeland Security (formerly the Commissioner of Customs) or any officer or employee of the Directorate for Border and Transportation Security (formerly the United States Customs Service) designated by the Under Secretary), or, upon the request of the Secretary, by any other agency that has authority to manage and dispose of seized property. (g)

Undercover investigation operations

(1)

Use of funds

With respect to any undercover investigative operation conducted by the Office of Export Enforcement of the Department of Commerce that is necessary for the detection and prosecution of violations of this Act— (A)funds made available for export enforcement under this Act may be used to purchase property, buildings, and other facilities, and to lease equipment, conveyances, and space within the United States, without regard to sections 1341 and 3324 of title 31, United States Code, section 8141 of title 40, United States Code, sections 3732(a) and 3741 of the Revised Statutes of the United States (41 U.S.C. 11(a) and 22), and sections 304(a), 304A, 304B, 304C, and 305 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 254 (a), 254b, 254c, 254d, and 255); (B)funds made available for export enforcement under this Act may be used to establish or to acquire proprietary corporations or business entities as part of an undercover operation, and to operate such corporations or business entities on a commercial basis, without regard to sections 1341, 3324, and 9102 of title 31, United States Code; (C)funds made available for export enforcement under this Act and the proceeds from undercover operations may be deposited in banks or other financial institutions without regard to the provisions of section 648 of title 18, United States Code, and section 3302 of title 31, United States Code; and (D)the proceeds from undercover operations may be used to offset necessary and reasonable expenses incurred in such operations without regard to the provisions of section 3302 of title 31, United States Code, if the Secretary certifies, in writing, that the action authorized by subparagraph (A), (B), (C), or (D) for which the funds would be used is necessary for the conduct of the undercover operation. (2)

Disposition of business entities

If a corporation or business entity established or acquired as part of an undercover operation has a net value of more than $250,000 and is to be liquidated, sold, or otherwise disposed of, the Secretary shall report the circumstances to the Comptroller General of the United States as much in advance of such disposition as the Secretary determines is practicable. The proceeds of the liquidation, sale, or other disposition, after obligations incurred by the corporation or business enterprise are met, shall be deposited in the Treasury of the United States as miscellaneous receipts. Any property or equipment purchased pursuant to paragraph (1) may be retained for subsequent use in undercover operations under this section. When such property or equipment is no longer needed, it shall be considered surplus and disposed of as surplus government property. (3)

Deposit of proceeds

As soon as the proceeds from an undercover investigative operation of the Office of Export Enforcement of the Department of Commerce with respect to which an action is authorized and carried out under this subsection are no longer needed for the conduct of such operation, the proceeds or the balance of the proceeds remaining at the time shall be deposited into the Treasury of the United States as miscellaneous receipts. (4)

Audit and report

(A)

Audit

The Secretary shall conduct a detailed financial audit of each closed undercover investigative operation of the Office of Export Enforcement of the Department of Commerce. Not later than 180 days after an undercover operation is closed, the Secretary shall submit to the Congress a report on the results of the audit. (B)

Report

The Secretary shall submit annually to Congress a report, which may be included in the annual report under section 14, including the following information: (i)The number of undercover investigative operations pending as of the end of the period for which the report is submitted. (ii)The number of undercover investigative operations commenced in the 1-year period preceding the period for which the report is submitted. (iii)The number of undercover investigative operations closed in the 1 year period preceding the period for which such report is submitted and, with respect to each such closed undercover operation, the results obtained and any civil claims made with respect to the operation. (5)

Definitions

For purposes of paragraph (4)— (A)the term closed, with respect to an undercover investigative operation, refers to the earliest point in time at which all criminal proceedings (other than appeals) pursuant to the investigative operation are concluded, or covert activities pursuant to such operation are concluded, whichever occurs later; and (B)the terms undercover investigative operation and undercover operation mean any undercover investigative operation conducted by the Office of Export Enforcement of the Department of Commerce— (i)in which the gross receipts (excluding interest earned) exceed $25,000, or expenditures (other than expenditures for salaries of employees) exceed $75,000, and (ii)which is exempt from section 3302 or 9102 of title 31, United States Code,

except that clauses (i) and (ii) shall not apply with respect to the report to the Congress required by paragraph (4)(B).

(h)

Wiretaps

Interceptions of communications in accordance with section 2516 of title 18, United States Code, are authorized to further the enforcement of this Act. (i)

Authorization for bureau of industry and security

The Secretary may authorize, without fiscal year limitation, the expenditure of funds transferred to, paid to, received by, or made available to the Bureau of Industry and Security of the Department of Commerce as a reimbursement in accordance with section 9703 of title 31, United States Code (as added by Public Law 102–393). (j)

Export Enforcement Account

(1)

Establishment

There is established in the general fund of the Treasury a separate fund which shall be known as the The BIS Export Enforcement Fund. Notwithstanding any other provision of this Act, there shall be deposited as offsetting receipts into the BIS Export Enforcement Fund amounts described in paragraph (2). Amounts in the BIS Export Enforcement Fund shall remain available until expended. (2)

Amounts described

The amounts described in this paragraph are civil penalties collected pursuant to regulations issued, maintained, or amended under the Act, the International Emergency Economic Powers Act, and any other statute pursuant to which the Bureau of Industry and Security of the Department of Commerce has the authority to impose civil penalties. (3)

Transfers to other accounts

The Secretary of the Treasury shall transfer from the BIS Export Enforcement Fund to the BIS Export Enforcement Account amounts equal to the expenses incurred by the Secretary of Commerce for activities that further the enforcement of the provisions of this Act. Such activities include— (A)the investigative travel expenses of agents of the Office of Export Enforcement of the Department of Commerce, including travel expenses for training courses for such agents; (B)storage costs for detained and seized items related to investigations of violations of this Act; and (C)the purchase, repair, and maintenance of equipment necessary for the operations of the Office of Export Enforcement of the Department of Commerce. (4)

Authorization of appropriations

There are authorized to be appropriated from the BIS Export Enforcement Fund amounts not to exceed $1,000,000 for each fiscal year to carry out the purposes set forth in this subsection. (5)

Deposits into general fund

At the end of each fiscal year, any unobligated amount in excess of $1,000,000 remaining in the BIS Export Enforcement Fund shall be deposited in the general fund of the Treasury.

Administrative procedure and judicial review

Section 13(a) of the Export Administration Act of 1979 (50 U.S.C. App. 2412(a)) is amended in the first sentence by inserting or under the Export Administration Regulations as maintained and amended under the authority of the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) after under this Act.

Administrative and regulatory authority

Section 15(a) of the Export Administration Act of 1979 (50 U.S.C. App. 2414(a)) is amended in the first sentence— (1)by striking Under Secretary of Commerce for Export Administration and inserting Under Secretary of Commerce for Industry and Security; and (2)by striking such other statutes and all that follows through the end of the sentence and inserting other statutes that the Secretary has delegated to the Under Secretary of Commerce for Industry and Security or any predecessor (including the Under Secretary of Commerce for Export Administration and the Assistant Secretary of Commerce for Trade Administration) as of the date of the enactment of the Export Administration Renewal Act of 2005, or may delegate to the Under Secretary of Commerce for Industry and Security from time to time..

10.

Authorization of appropriations

Section 18 of the Export Administration Act of 1979 (50 U.S.C. App. 2417) is amended to read as follows:

18.

Authorization of appropriations

There are authorized to be appropriated to the Department of Commerce to carry out the purposes of this Act such sums as may be necessary for each fiscal year.

11.

Termination date

Section 20 of the Export Administration Act of 1979 (50 U.S.C. App. 2419) is amended to read as follows:

20.

Termination date

The authority granted by this Act terminates at the end of the 2-year period beginning on the date of the enactment of the Export Administration Renewal Act of 2005, except that the authority granted by section 12 of the Act shall not terminate.

12.

Technical and conforming amendments

(a)

Wiretapping

Section 2516(1) of title 18, United States Code, is amended by adding at the end the following:

(q)any violation of, or conspiracy to violate, the Export Administration Act of 1979.

(b)

Pay of Under Secretary

Section 5314 of title 5, United States Code, is amended by striking Under Secretary of Commerce for Export Administration and inserting Under Secretary of Commerce for Industry and Security. (c)

Amendments to title 31, United States Code

(1)Section 9703(a) of title 31, United States Code (as added by Public Law 102–393), is amended by striking or the United States Coast Guard and inserting , the United States Coast Guard, or the Bureau of Industry and Security of the Department of Commerce. (2)Section 9703(a)(2)(B)(i) of title 31, United States Code (as added by Public Law 102–393), is amended— (A)by striking or at the end of subclause (I); (B)by inserting or at the end of subclause (II); and (C)by adding at the end the following new subclause:

(III)a violation of the Export Administration Act of 1979, or any regulation, license, or order issued under that Act;

(3)Section 9703(p)(1) of title 31, United States Code (as added by Public Law 102–393) is amended by adding at the end the following: In addition, for purposes of this section, the Bureau of Industry and Security of the Department of Commerce shall be considered to be a Department of the Treasury law enforcement organization.. (d)

Civil forfeiture proceedings

Section 983(i)(2) of title 18, United States Code, is amended— (1)by striking or at the end of subparagraph (D); (2)by striking the period at the end of subparagraph (E) and inserting ; or; and (3)by adding at the end the following new subparagraph:

(F)the Export Administration Act of 1979.

(e)

Clerical amendment

Paragraph (3) of section 11A(k) of the Export Administration Act of 1979 (50 U.S.C. App. 2410A(k)(3)) is amended— (1)by redesignating that paragraph as paragraph (2); and (2)by striking paragraph (2) and inserting paragraph (1).