[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2000 Introduced in Senate (IS)]
110th CONGRESS
1st Session
S. 2000
To amend and extend the Export Administration Act of 1979 and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 3, 2007
Mr. Dodd (by request) introduced the following bill; which was read
twice and referred to the Committee on Banking, Housing, and Urban
Affairs
_______________________________________________________________________
A BILL
To amend and extend the Export Administration Act of 1979 and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Export Enforcement Act of 2007''.
SEC. 2. 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''.
SEC. 3. 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 $1,000,000,
imprisoned for not more than 10 years, or both, for each such
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 for each such violation an amount equal to
the greater of--
``(A) up to 10 times the value of the exports
involved; or
``(B) $5,000,000.
``(b) Forfeiture of Property Interest and Proceeds.--
``(1) Criminal forfeiture.--Any person who is convicted of
a violation under paragraph (1) or (2) of subsection (a) shall,
in addition to any penalty, forfeit to the United States such
person's--
``(A) security or other interest in, claim against,
or property or contractual rights of any kind in, the
real or personal property that was the subject of the
violation;
``(B) interest in any property, real or personal,
constituting or traceable to gross profits or other
proceeds obtained from such violation; and
``(C) interest in any property, real or personal,
used or intended to be used to commit or to promote the
commission of such violation.
``(2) Civil forfeiture.--Any property subject to forfeiture
pursuant to paragraph (1) may be forfeited to the United States
in a civil case in accordance with the procedures set forth in
section 981 of title 18, United States Code.'';
(2) in subsection (c), by striking paragraph (1) and
inserting the following:
``(1) Civil penalty.--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 25 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 or
attempted export of items subject to this Act or any
regulation, license, or order issued under the
International Emergency Economic Powers Act, the Arms
Export Control Act, or the Trading with the Enemy Act;
``(I) section 175 of title 18, United States Code;
``(J) a provision of the Atomic Energy Act of 1954
(42 U.S.C. 201 et seq.);
``(K) section 831 of title 18, United States Code;
``(L) sections 2332a, 2332b, 2332d, 2332g, and
2332h of title 18, United States Code;
``(M) section 1956 of title 18, United States Code,
if in conjunction with any export or attempted export
in violation of this Act, or any regulation, rule,
order, or license issued under the International
Emergency Economic Powers Act, the Arms Export Control
Act, or the Trading with the Enemy Act;
``(N) sections 2339A, 2339B, and 2339C of title 18,
United States Code;
``(O) section 554 of title 18, United States Code,
(relating to smuggling goods from the United States) as
added by section 331(a) of Public Law 109-177; or
``(P) section 554 of title 18, United States Code,
(relating to border tunnels and passages) as added by
section 551 of Public Law 109-295.
``(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 finding that such
relationship exists with the convicted person. The Secretary
shall make such finding 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 violation was
committed.
``(2) Exception.--
``(A) Tolling.--In any case in which a criminal
indictment or information in connection with actions
constituting a violation under subsection (a) is
returned or filed within the time limit prescribed by
law for the institution of such indictment or
information (as the case may be), 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 or the filing of the criminal information,
be tolled against any person named as a defendant.
``(B) Duration.--The tolling of the limitation with
respect to a person under subparagraph (A) shall be for
a period of 6 months beginning on the date of whichever
of the following events occurs last:
``(i) The date the person is convicted
pursuant to the criminal indictment or criminal
information.
``(ii) The date the indictment or the
information against the person is dismissed.
``(iii) The date the criminal action
against the person is otherwise concluded.''.
SEC. 4. ENFORCEMENT.
Section 12 of the Export Administration Act of 1979 (50 U.S.C. App.
2411) is amended--
(1) in subsection (a), by striking paragraphs (1), (2),
(3), and (4) and inserting the following:
``(1) In general.--To the extent necessary or appropriate
for the enforcement of this Act or for 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 the United States Immigration
and Customs Enforcement specifically designated by the
Secretary of Homeland Security) and the Secretary of
Commerce (and officers and employees of the Office of
Export Enforcement of the Department of Commerce
specifically designated by the Secretary of Commerce)
may conduct investigations outside of the United
States;
``(C) the head of any department or agency
exercising any function under this Act (and the
officers or employees of such department or agency) 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) the officers or employees of such
department or agency 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 of Commerce (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) Authority of immigration and customs enforcement and
customs and border protection.--
``(A) In general.--Subject to subparagraph (B), the
U.S. Immigration and Customs Enforcement and the 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 the U.S. Immigration and
Customs Enforcement and the U.S. Customs and
Border Protection are authorized by law to
conduct such activities.
``(B) Searches and seizures.--An officer of the
U.S. Immigration and Customs Enforcement or the U.S.
Customs and Border Protection may conduct the following
activities in carrying out enforcement authority under
this Act:
``(i) Stop, search, and examine a vehicle,
vessel, aircraft, person, package, or
container.
``(ii) 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.
``(iii) Make arrests without warrant for
any violation of this Act committed in the
presence or view of the officer or if the
officer has probable cause to believe that the
person to be arrested has committed or is
committing such a violation.
``(C) Arrest authority.--The arrest authority
conferred by subparagraph (B)(iii) is in addition to
any arrest authority under any other provision of law.
``(D) Detention of goods.--The U.S. Immigration and
Customs Enforcement and the U.S. Customs and Border
Protection may not detain for more than 45 days any
shipment of goods or technology that may be exported
without a license issued by the Department of Commerce.
In any case in which the goods are detained as the
result of a disagreement between the Secretary, and the
head of any other department or agency with export
licensing authority under any other provision of law,
regarding issuance of an export license for the goods
or technology, the disagreement shall be resolved
within that 45-day period. At the end of that 45-day
period, the U.S. Immigration and Customs Enforcement
and the 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 law.
``(3) Enforcement.--
``(A) In general.--Subject to subparagraph (B)--
``(i) the Secretary shall have the
responsibility for the enforcement of section
8;
``(ii) in the enforcement of any other
provision of this Act, the Secretary is
authorized to search, detain (after search),
and seize goods or technology--
``(I) at places within the United
States other than the ports specified
in paragraph (2)(A); and
``(II) at 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
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 the
Secretary of Homeland Security; and
``(iv) enforcement activities conducted
outside the United States, except for pre-
license investigations and post-shipment
verifications, shall be conducted with the
concurrence of the Secretary of Homeland
Security.
``(B) Authority of office of export enforcement.--
The Secretary may designate any employee of the Office
of Export Enforcement of the Department of Commerce to
do the following in carrying out enforcement authority
under 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) Attorney general guidelines.--The authority conferred
by paragraph (3) shall be exercised consistent with guidelines
approved by the Attorney General.'';
(2) in subsection (a), as amended by paragraph (1), by
striking paragraphs (6), (7), and (8) and inserting after
paragraph (5) the following:
``(6) Best practices guidelines.--
``(A) In general.--The Secretary, in consultation
with the technical advisory committees established
under section 5(h), and representative exporters,
shippers, trade facilitators, freight forwarders, and
reexporters, shall continue to publish and update `best
practices' guidelines to help industries develop and
implement, on a voluntary basis, effective export
control programs in compliance with this Act.
``(B) Export compliance program.--The existence of
an effective export compliance program and high quality
overall export compliance effort is one of the factors
that ordinarily should be given weight as a mitigating
factor in a civil penalty action under this Act.
``(7) Reference to enforcement.--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.'';
(3) in subsection (c)--
(A) by striking the heading and inserting the
following: ``Confidentiality of Information.--''
(B) by redesignating paragraphs (2) and (3) as
paragraphs (3) and (4), respectively;
(C) by striking paragraph (1) and inserting the
following:
``(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 withholding such
information 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), and commodity jurisdiction
requests;
``(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) Withholding of information from federal agencies
barred.--Nothing in this Act shall be construed as authorizing
the withholding of information from other Federal agencies for
the enforcement of this Act, any regulation, rule, order, or
license issued under the International Emergency Economic
Powers Act, or any other provision of law.'';
(D) in paragraph (3), as redesignated--
(i) by striking ``under this Act or
previous Acts'' each place it appears and
inserting ``under this Act, previous Acts, 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.)'';
(ii) by striking ``the General Accounting
Office'' each place it appears and inserting
``the Government Accountability Office''; and
(iii) by moving the text 2 ems to the
right; and
(E) in paragraph (4), as redesignated--
(i) by striking ``(4) Any'' and inserting
the following:
``(4) Information sharing.--Any'';
(ii) by moving the text 2 ems to the right;
and
(iii) by striking ``Commissioner of
Customs'' each place it appears and inserting
``Secretary of Homeland Security''; and
(4) 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) Procedures.--Any seizure or forfeiture under this
subsection shall be made in accordance with the procedures of
section 981 of title 18, United States Code.
``(g) Undercover Investigation Operations.--
``(1) Use of funds.--In the case of 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 a violation 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 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 section
3302 of title 31, United States Code, if the Secretary
(or the Secretary's designee) 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.
``(h) 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).''.
SEC. 5. 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''.
SEC. 6. 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 period 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 Enforcement Act of 2007, or may delegate to the Under
Secretary of Commerce for Industry and Security from time to
time.''.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
Section 18 of the Export Administration Act of 1979 (50 U.S.C. App.
2417) is amended to read as follows:
``SEC. 18. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated to the Department of
Commerce to carry out this Act--
``(1) $78,776,000 for fiscal year 2008; and
``(2) such sums as may be necessary for each of the fiscal
years 2009, 2010, 2011, and 2012.''.
SEC. 8. TERMINATION DATE.
Section 20 of the Export Administration Act of 1979 (50 U.S.C. App.
2419) is amended to read as follows:
``SEC. 20. TERMINATION DATE.
``The authority granted by this Act shall terminate at the end of
the 5-year period beginning on the date of the enactment of the Export
Enforcement Act of 2007, except that the authority granted by sections
11 and 12 of this Act shall not terminate.''.
SEC. 9. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Wiretapping.--Section 2516(1) of title 18, United States Code,
is amended--
(1) by amending subsection (m) to read as follows:
``(m) any violation of the Export Administration Act of
1979 or of the International Emergency Economic Powers Act;'';
and
(2) in subsection (p), by inserting ``(8 U.S.C. 1324, 1327,
or 1328)'' after ``Immigration and Nationality Act''.
(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 in the matter
preceding paragraph (1), 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(o)(1) of title 31, United States Code (as
added by Public Law 102-393) is amended by adding at the end
the following: ``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.--Section 11A(k) of the Export
Administration Act of 1979 (50 U.S.C. App. 2410A(k)) is amended--
(1) by redesignating paragraph (3) as paragraph (2); and
(2) in paragraph (2), as redesignated, by striking
``paragraph (2)'' and inserting ``paragraph (1)''.
(f) Arms Export Control Act.--The Arms Export Control Act (22
U.S.C. 2771 et seq.) is amended--
(1) in section 38(e) (22 U.S.C. 2778(e)), by striking
``subsections (c), (d), (e), and (g)'' and inserting ``(b),
(c), (d), and (e)''; and
(2) in section 40(k) (22 U.S.C. 2780(k)), by striking
``11(c), 11(e) , 11(g)'' and inserting ``11(b), 11(c), 11(e)''.
(g) Tariff Act of 1930.--Section 596 of the Tariff Act of 1930 (19
U.S.C. 1595A) is amended by adding at the end the following new
subsection:
``(e) Every person involved in a violation of subsection (d) shall
be liable for a penalty up to the value of the articles exported or
attempted to be exported, or $2,500, whichever is greater.''.
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