Confidentiality of Shipper’s Export Declarations; conferences; Automated Export System licenses and filings

Chapter 9 of title 13, United States Code, is amended— (1)by redesignating sections 302 through 307 as sections 306 through 311, respectively; and (2)by inserting after section 301 the following new sections:

302.

Confidentiality of Shipper’s Export Declarations

(a)

Confidentiality

Shipper’s Export Declarations and Automated Export System filings (or any successor document), wherever located, shall be exempt from disclosure to the public, except to the extent that the information in such filings is made available under subsection (b)(1) and is introduced into evidence, and made a part of the public record, in an enforcement proceeding pursuant thereto. (b)

Sharing with other agencies and governments

(1)

Agencies in the united states

The Secretary shall, if the Secretary determines that it is in the national interest to do so, provide for the sharing of Shipper’s Export Declaration information with other Federal departments and agencies in order to enforce or administer export laws and regulations of the United States, and for such other purposes as the Secretary may determine. (2)

Foreign governments

The Secretary may, if the Secretary determines, on a case by case basis, that it is in the national interest to do so, provide for the sharing of Shipper’s Export Declaration information with foreign governments to assist in the enforcement of export laws and regulations of the United States and to conduct and coordinate programs to combat terrorism and the proliferation of weapons of mass destruction, except that the sharing of such information may be permitted only if the foreign government concerned— (A)has certified to the Secretary that the information shared will only be used for the purpose of enforcing export laws and regulations of the United States, international agreements providing for the nonproliferation of weapons to which the United States is a party, or multilateral export control regimes to which the United States is a party; and (B)has, through a bilateral or multilateral agreement (including a memorandum of understanding) to which the United States is a party, agreed that the information shared will not be disclosed to any commercial entity. (c)

Information not To be withheld from Congress

Nothing in this section shall be construed as authorizing the withholding of information from the Congress.

303.

Conferences and seminars

(a)

Mandatory conference participation

The Secretary shall work with the Secretary of State, the Secretary of Defense, the Secretary of Homeland Security, and the Secretary of the Treasury to ensure that appropriate personnel of each of their respective departments and agencies that are involved in the regulation of exports or the enforcement of such regulation are made available to participate in fora the purpose of which is to educate exporters about laws and regulations of the United States governing exports and about the Automated Export System in particular, including through seminars, educational or training meetings, exhibitions, symposiums, and other similar meetings. (b)

Authority To collect fees

The Secretary may collect fees from any individual or other person attending or participating in any forum described in subsection (a) that is conducted by, or jointly with, the Department of Commerce. The Secretary may use contractors to collect such fees. Fees under this subsection may be collected in advance of the forum. (c)

Disposition of collected fees

Amounts collected under subsection (b) shall be used to pay all or part of the cost of fora described in subsection (a), and shall be credited to the account from which the costs of such fora have been paid or will be paid. (d)

Budget for participating agencies

In the case of any agency that does not have the available funds to participate in a forum under subsection (a), the Secretary shall make such sums available, from fees collected under subsection (b), as are necessary to allow such participation by the agency. (e)

Availability of materials to the public

The Secretary shall make available to the public, including through its public website, the materials provided for the fora held under subsection (a).

304.

Automated Export System licenses for filers

(a)

Licenses

(1)

In general

The Secretary may establish a licensing program to grant licenses to persons to file information in the Automated Export System, either on behalf of themselves or acting as an intermediary. Such licensing program may provide licenses to individuals as well as any corporation, association, or partnership that is organized under the laws of the United States or of any State, the District of Columbia, or any commonwealth, territory, or possession of the United States. Such licensing program may further provide for the authorization of multiple filers of data on behalf of any such corporation, association, or partnership. (2)

Qualifications for individuals

The Secretary may establish qualification requirements for an individual applying for a license under this subsection, except that an individual may be granted a license only if the individual is a United States citizen, an alien lawfully admitted for permanent residence to the United States, or a national of the United States (in the case of a resident of a territory or possession of the United States). In assessing the qualification of a license applicant, the Secretary may conduct an examination to determine the applicant’s knowledge of the Automated Export System and laws, regulations, and procedures related to the export of goods from the United States, and may require participation in a continuing education program on a periodic basis. The Secretary may also obtain information to determine an applicant’s fitness and character to act as an Automated Export System filer. (3)

Licenses for corporations and other business entities

The Secretary may grant an Automated Export System filing license to a corporation, association, or partnership only if at least one official of the corporation or association who is designated by the corporation or association, or one member of the partnership who is authorized to act on behalf of the partnership— (A)holds a valid Automated Export System license under paragraph (2); (B)is responsible for the supervision and control of filing Shipper’s Export Declaration information in the Automated Export System; and (C)is a United States citizen, an alien lawfully admitted for permanent residence to the United States, or a national of the United States (in the case of a resident of a territory or possession of the United States). (4)

Lapse of license

Licenses under this subsection shall be granted for a period of not less than 3 years, and may be renewed in such manner and under such conditions as are established by the Secretary. (b)

Denial, suspension, or revocation of license

(1)

General rule

The Secretary may deny, revoke, or suspend a license or license application under subsection (a) if the Secretary has reason to believe that the applicant or licensee has violated or will violate any regulations issued by the Secretary under this section or any law or regulation of the United States controlling exports. The Secretary may provide rules for notifying licensees and license applicants of the Secretary's process for denying, revoking, or suspending a license or license application, consistent with the Secretary's responsibility to protect national security. (2)

Procedures for denial, revocation, or suspension

(A)

In general

If an application is denied or a license revoked or suspended under paragraph (1), the Secretary shall send the applicant or licensee notice in writing specifically setting forth the grounds for denial, suspension, or revocation, shall allow the applicant or licensee a period of 30 calendar days beginning on the date on which the notice is received to respond in writing, and shall advise the licensee or applicant of the right to a hearing. An applicant or licensee may request an extension of time for such response, and the Secretary shall grant such extension for good cause shown. If no response is filed within that 30-day period, or any extension thereof, and the Secretary determines that the denial, suspension, or revocation is still warranted, the denial, suspension, or revocation shall become final. (B)

Hearing

If a timely response is received under subparagraph (A) and the licensee or applicant requests a hearing, a hearing shall be held within 30 calendar days after the date on which the request is received, or at a later date if the applicant requests an extension and shows good cause therefor. An administrative law judge appointed under section 3105 of title 5, United States Code, shall preside at the hearing, which shall be conducted in accordance with regulations issued by the Secretary. The administrative law judge shall issue a written decision, based solely on the record, setting forth the findings of fact, and the reasons for the decision. (C)

Suspension of license pending appeal

In a case in which a person appeals a decision revoking or suspending a license under this subsection, including an appeal under subsection (c), the Secretary may order that the license continue to be suspended while the appeal is pending. (c)

Denial, suspension, or revocation of license

(1)

General rule

Procedures for denial, revocation, or suspension

(A)

In general

Hearing

If a timely response is received under subparagraph (A) and the licensee or applicant requests a hearing, a hearing shall be held within 30 calendar days after the date the request is received, or at a later date if the applicant requests an extension and shows good cause therefor. An administrative law judge appointed under section 3105 of title 5, United States Code, shall preside at the hearing, which shall be conducted in accordance with regulations issued by the Secretary. The administrative law judge shall issue a written decision, based solely on the record, setting forth the findings of fact, and the reasons for the decision. (C)

Suspension of license pending appeal

Settlement and compromise

The Secretary may settle and compromise any proceeding that has been instituted under this subsection according to the terms and conditions agreed to by the parties, including the reduction of any proposed suspension or revocation. (4)

Limitation of actions

A proceeding under this subsection may be commenced only if the appropriate service of written notice is made within 3 years after the date on which the alleged act described in paragraph (1) was committed, except that if the alleged act consists of fraud, the 3-year period shall begin on the date on which the alleged act was discovered. (d)

Judicial appeal

(1)

In general

A licensee under this section, or an applicant for a license under this section, may appeal any decision of the Secretary denying, suspending, or revoking the license by filing in the appropriate United States district court, within 60 days after the date on which the decision is issued, a written petition requesting that the decision be modified or set aside in whole or in part. A copy of the petition shall be served upon the Secretary or the Secretary’s designee. In cases involving revocation or suspension of a license, the Secretary, after receiving the petition, shall file in the court the record upon which the decision complained of was entered. (2)

Failure to appeal

If an appeal is not filed within the time limits specified in paragraph (1), the decision of the Secretary shall be final and conclusive. (e)

Fees and charges

The Secretary may issue regulations prescribing reasonable fees and charges, with particular sensitivity to small businesses, to defray the costs of the Secretary in carrying out this section. (f)

Regulations

The Secretary shall provide a period of at least 90 days for the submission of public comments on any regulations issued to carry out this section, before such regulations may become effective.

305.

Blocking prohibited or restricted exports

(a)

In general

The Secretary, in consultation with the Secretary of State, the Secretary of Defense, the Secretary of Homeland Security, and the Secretary of the Treasury, shall issue regulations to ensure that the Automated Export System will not accept the filing of data in connection with an export from the United States if the name or address of any party to a transaction involved in the intended export, or the country of destination of the intended export, would result in the export violating the prohibitions or restrictions in the export control or trade sanctions regulations administered by the Secretary, the Secretary of State, or the Secretary of the Treasury. (b)

Incorporation into Automated Export System of changes in law

Not later than 1 year after the date of the enactment of Securing Exports Through Coordination and Technology Act, the Secretary, in consultation with the Secretary of State, the Secretary of Defense, the Secretary of Homeland Security, and the Secretary of the Treasury, shall ensure, to the extent feasible, that changes in laws and regulations controlling exports, including changes under the Arms Export Control Act, the Export Administration Act of 1979, the International Economic Emergency Powers Act, and the Foreign Assistance Act of 1961, are promptly reflected in the Automated Export System. (c)

Minimum requirements

The Secretary shall ensure that the Automated Export System contains at least the following operational features and provides the following notifications to filers: (1)Codes entered into the Automated Export System to identify an export, whether by classification under the Harmonized Tariff Schedule or otherwise, will alert the exporter of potential export license requirements under the Export Administration Regulations or the International Traffic in Arms Regulations (ITAR). (2)Automated Export System will issue a Fatal Error notice when data entered for an export contain any of the following: (A)The name or address of an individual or legal entity that has been described on any restricted party list and the data are not accompanied by the necessary export authorization. (B)The intermediate or ultimate country of destination is subject to trade sanctions imposed by the United States and the data are not accompanied by the necessary export authorization. (C)In the case of defense articles and defense services, the country of the intermediate or ultimate consignee is subject to an arms embargo or prohibition imposed by the United State and the data are not accompanied by the necessary export license. (3)Automated Export System will issue compliance alerts or other warnings to the filer when data for an export are entered containing any of the following errors or omissions: (A)The Harmonized Tariff System code is inconsistent with the Export Control Classification Number or the U.S. Munitions List Category. (B)In the case of a dual use item, the license exception is not available to the country of the ultimate consignee or to the intermediate or ultimate consignee. (C)In the case of defense articles and defense services, the U.S. Munitions List Category is identified but no license number, exemption, or exception is correctly identified. (4)Fatal Error notices, compliance alerts, or other warnings are accompanied by references to the applicable regulations and licensing authorities. (d)

Definitions

In this section: (1)

Defense articles and defense services

The term defense articles and defense services has the meaning given that term in section 47(7) of the Arms Export Control Act (22 U.S.C. 2794(7)). (2)

Dual use item

The term dual use item means an item subject to export controls under the Export Administration Act of 1979, as continued in effect pursuant to the International Emergency Economic Powers Act. (3)

Fatal error notice

The term fatal error notice means a notice that the transaction for which data are entered into the Automated Export System cannot be completed. (4)

Restricted party list

The term restricted party list means any list maintained by any department or agency of the United States that is comprised of persons or entities to whom exports are restricted, including the following: (A)The Denied Parties List (or comparable successor list) of the Department of Commerce under the Export Administration Regulations (15 C.F.R. 764 Supplement No. 2). (B)The Entity List (or comparable successor list) of the Department of Commerce under the Export Administration Regulations (15 C.F.R. 774 Supplement No. 4). (C)The list of entities under General Order No. 3 of the Department of Commerce under the Export Administration Regulations (15 C.F.R. 736, Supp. No. 1) (or comparable successor list). (D)Those persons and entities with whom transactions are blocked pursuant to section 203 of the International Emergency Economic Powers Act (50 U.S.C. 1702). (E)A person to whom exports of defense articles or defense services are restricted under section 38(g)(4) of the Arms Export Control Act (22 U.S.C. 2778(g)(4)) or section 127.7 of title 22, Code of Federal Regulations (or successor provision). (e)

Construction

Nothing in this section shall be construed to authorize an export because the Automated Export System accepts the filing of data.