[Congressional Record Volume 142, Number 104 (Tuesday, July 16, 1996)]
[House]
[Pages H7563-H7589]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXPORT ADMINISTRATION ACT OF 1996
Mr. ROTH. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 361) to provide authority to control exports, and for other
purposes, as amended.
The Clerk read as follows:
H.R. 361
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TABLE OF CONTENTS.
The table of contents of this Act is as follows:
Sec. 1. Table of contents.
TITLE I--EXPORT ADMINISTRATION
Sec. 101. Short title.
Sec. 102. Findings.
Sec. 103. Policy statement.
Sec. 104. General provisions.
Sec. 105. Multilateral controls.
Sec. 106. Emergency controls.
Sec. 107. Short supply controls.
Sec. 108. Foreign boycotts.
Sec. 109. Procedures for processing export license applications; other
inquiries.
Sec. 110. Violations.
Sec. 111. Controlling proliferation activity.
Sec. 112. Administrative and judicial review.
Sec. 113. Enforcement.
Sec. 114. Export control authorities and procedures.
Sec. 115. Annual report.
Sec. 116. Definitions.
Sec. 117. Effects on other Acts.
Sec. 118. Secondary Arab boycott.
Sec. 119. Conforming amendments to other laws.
Sec. 120. Expiration date.
Sec. 121. Savings provision.
TITLE II--NUCLEAR PROLIFERATION PREVENTION
Sec. 201. Repeal of termination of provisions of the Nuclear
Proliferation Prevention Act of 1994.
Sec. 202. Seeking multilateral support for unilateral sanctions.
Sec. 203. Sanctions under the Nuclear Proliferation Prevention Act of
1994.
TITLE I--EXPORT ADMINISTRATION
SEC. 101. SHORT TITLE.
This title may be cited as the ``Export Administration Act
of 1996''.
SEC. 102. FINDINGS.
The Congress makes the following findings:
(1) Export controls are a part of a comprehensive response
to national security threats. United States exports should be
restricted only for significant national security,
nonproliferation, and foreign policy reasons.
(2) Exports of certain commodities and technology may
adversely affect the national security and foreign policy of
the United States by making a significant contribution to the
military potential of individual countries or by
disseminating the capability to design, develop, test,
produce, stockpile, or use weapons of mass destruction,
missile delivery systems, and other significant military
capabilities. Therefore, the administration of export
controls should emphasize the control of these exports.
(3) The acquisition of sensitive commodities and technology
by those countries and end users whose actions or policies
run counter to United States national security or foreign
policy interests may enhance the military capabilities of
those countries, particularly their ability to design,
develop, test, produce, stockpile, use, and deliver nuclear,
chemical, and biological weapons, missile delivery systems,
and other significant military capabilities. This enhancement
threatens the security of the United States and its allies,
and places additional demands on the defense budget of the
United States. Availability to countries and end users of
items that contribute to military capabilities or the
proliferation of weapons of mass destruction is a fundamental
concern of the United States and should be eliminated through
negotiations and other appropriate means whenever possible.
(4) With the growing importance of exports to sustained
United States economic growth and vitality, restrictions on
exports must be evaluated in terms of their effects on the
United States economy.
(5) Export controls cannot be the sole instrument of the
United States to prevent a country or end user from
developing weapons of mass destruction. For this reason,
export controls should be applied as part of a comprehensive
response to security threats.
(6) The national security of the United States depends not
only on wise foreign policies and a strong defense, but also
a vibrant national economy. To be truly effective, export
controls should be applied uniformly by all suppliers.
(7) International treaties, such as the Chemical Weapons
Convention, and international agreements and arrangements
intended to control, lessen, or eliminate weapons of mass
destruction should be fully implemented by, among other
things, imposing restrictions on imports and exports of
designated items, monitoring, and transmitting reports on,
the production, processing, consumption, export, and import
of designated items, and complying with verification regimes
mandated by such treaties, agreements, and arrangements.
(8) Except in the event the United States is the sole
source of critical supplies, unilateral export controls are
generally not truly effective in influencing the behavior of
other governments or impeding access to controlled items.
Unilateral controls alone may impede access to United States
sources of supply without affecting the ability of countries
to obtain controlled items elsewhere. Moreover, unilateral
controls generally permit foreign competitors to serve
markets the United States Government denies to United States
firms and workers, thus impairing the reliability of United
States suppliers in comparison with their foreign
competitors. At the same time, the need to lead the
international community or overriding national security or
foreign policy interests may justify unilateral controls in
specific cases.
(9) The United States recognizes the importance of
comprehensive enforcement measures to maximize the
effectiveness of multilateral controls.
(10) The United States export control system must not be
overly restrictive or bureaucratic, or undermine the
competitive position of United States industry. The export
control system must be efficient, responsive, transparent,
and effective.
(11) Export restrictions that negatively affect the United
States industrial base may ultimately weaken United States
military capabilities and lead to dependencies on foreign
sources for key components.
(12) Minimization of restrictions on exports of
agricultural commodities and products is of critical
importance to the maintenance of a sound agricultural sector,
to a positive contribution to the balance of payments, to
reducing the level of Federal expenditures for agricultural
support programs, and to United States cooperation in efforts
to eliminate malnutrition and world hunger.
(13) Minimization of restrictions on the export of
information technology products and services is of critical
importance to United States leadership in removing obstacles
to the effective development of a superior global information
infrastructure and the new jobs and markets, increased trade
and information flows, improved national security, and new
tools for the improvement of the quality of life for people
globally that will be created.
(14) The United States should play a leading role in
promoting transparency and responsibility with regard to the
transfers of conventional armaments and sensitive dual-use
goods and technologies.
SEC. 103. POLICY STATEMENT.
It is the policy of the United States to do the following:
(1) To stem the proliferation of weapons of mass
destruction, and the means to deliver them, and other
significant military capabilities by--
(A) leading international efforts to control the
proliferation of chemical and biological weapons, nuclear
explosive devices, missile delivery systems, and other
significant military capabilities;
(B) controlling involvement of United States persons in,
and contributions by United States persons to, foreign
programs intended to develop weapons of mass destruction,
missiles, and other significant military capabilities, and
the means to design, test, develop, produce, stockpile, or
use them; and
(C) implementing international treaties or other agreements
or arrangements concerning controls on exports of designated
items, reports on the production, processing, consumption,
and exports and imports of such items, and compliance with
verification programs.
(2) To restrict the export of items--
(A) that would significantly contribute to the military
potential of countries so as to prove detrimental to the
national security of the United States or its allies; or
(B) where necessary to further significantly the foreign
policy of the United States or to fulfill its declared
international commitments.
(3) To--
(A) minimize uncertainties in export control policy; and
(B) encourage trade with all countries with which the
United States has diplomatic or trading relations, except
those countries with which such trade has been determined by
the President to be against the national interest.
(4) To restrict export trade when necessary to protect the
domestic economy from the excessive drain of scarce materials
and to reduce the serious inflationary impact of foreign
demand.
(5) To further increase the reliance of the United States
upon multilateral coordination of controls through effective
control regimes that maintain lists of controlled items
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that are truly critical to the control objectives, strive to
increase membership to include all relevant countries,
maintain common criteria and procedures for licensing, and
harmonize member countries' licensing practices. It is the
policy of the United States that multilateral controls are
the best means of achieving the control objectives of the
United States.
(6) To impose unilateral controls only when it is necessary
to further significantly the national security or foreign
policy of the United States, and only after full
consideration of the economic impact of the controls and
their effectiveness in achieving their intended objectives.
(7) To make all licensing determinations in a timely manner
so undue delays in the licensing process will not cause a
United States person to lose an export sale.
(8) To use export controls to deter and punish acts of
international terrorism and to encourage other countries to
take immediate steps to prevent the use of their territories
or resources to aid, encourage, or give sanctuary to those
persons involved in directing, supporting, or participating
in acts of international terrorism. To this end, consistent
with the policies of this section and the provisions of this
title, the United States should, by restricting exports to
countries that have violated international norms of behavior
by repeatedly supporting acts of international terrorism,
distance itself from those countries.
(9)(A) To counteract restrictive trade practices or
boycotts fostered or imposed by foreign countries against
other countries friendly to the United States or against any
United States person.
(B) To encourage and, in specified cases, require United
States persons engaged in the export of commodities,
technology, and other information to refuse to take actions,
including furnishing information or entering into or
implementing agreements, which have the effect of furthering
or supporting the restrictive trade practices or boycotts
fostered or imposed by any foreign country against a country
friendly to the United States or against any United States
person.
(10) To streamline export control functions and increase
administrative accountability, and thereby better serve the
exporting public by reducing and eliminating overlapping,
conflicting, and inconsistent regulatory burdens.
(11) To minimize restrictions on the export of agricultural
commodities and products.
(12) To minimize restrictions on the export of information
technology products and services as part of a flexible
regulatory environment that can keep pace with the rapid
technological changes necessary to realize the full economic,
societal, and national security benefits of United States
leadership in the development of a superior global
information infrastructure.
(13) To cooperate with other countries to promote greater
transparency and responsibility with regard to the transfers
of armaments and sensitive goods and technologies, both for
the purpose of developing common understandings of the risks
to international peace and regional security associated with
the transfers of such items and to coordinate national
control policies to combat those risks.
(14) To enhance the national security and nonproliferation
interests of the United States. To this end and consistent
with the other policies of this section and the provisions of
this title, the United States will use export controls when
necessary to ensure that access to weapons of mass
destruction, missile delivery systems, and other significant
military capabilities is restricted. While the multilateral
nonproliferation regimes will be the primary instruments
through which the United States will pursue its
nonproliferation goals, it may also, consistent with the
policies of this section and the provisions of this title,
take unilateral action.
(15) To promote international peace, stability, and respect
for fundamental human rights. The United States may establish
controls on exports that contribute to the military
capabilities of countries that threaten international peace
or stability or to countries that abuse the fundamental
rights of their citizens, or to promote other important
foreign policy objectives of the United States, consistent
with the policies of this section and the provisions of this
title.
SEC. 104. GENERAL PROVISIONS.
(a) Types of Licenses.--Under such conditions as the
Secretary may impose, consistent with the provisions of this
title, the Secretary may require any type of license
appropriate to the effective and efficient implementation of
this title, including the following:
(1) Specific exports.--A license authorizing a specific
export.
(2) Multiple exports.--Licenses authorizing multiple
exports, issued pursuant to an application by the exporter,
in lieu of a license for each such export. Licenses under
this paragraph shall be designed to encourage and acknowledge
exporters' internal control programs for ensuring compliance
with the terms of the license.
(b) United States Commodity Control Index.--
(1) In general.--The Secretary shall establish and
maintain, in consultation with the Secretary of Defense and
the heads of other appropriate departments and agencies, a
United States Commodity Control Index specifying the license
requirements under this title that are applicable to the
items on the list.
(2) Contents.--The control index shall--
(A) consist of a multilateral control list of items on
which export controls are imposed under section 105, an
emergency control list of items on which export controls are
imposed under section 106, and a short supply control list of
commodities on which export controls are imposed under
section 107;
(B) include, as part of the multilateral and emergency
control lists, those items identified pursuant to section
111(a);
(C) for each item on the control index, specify with
particularity the performance (where applicable) and other
identifying characteristics of the item and provide a
rationale for why the item is on the control list;
(D) identify countries, and, as appropriate, end uses or
end users, including specific projects and end users of
concern, cross-referenced with the list of commodities and
technology on which export controls are imposed; and
(E) be sufficiently specific and clear as to guide
exporters and licensing officers in determinations of
licensing requirements under this title.
(c) Denied or Debarred Parties, Sanctioned Parties, Blocked
Persons, Specially Designated Nationals, and Other Parties
Presenting Unacceptable Risks of Diversion.--
(1) Denied or debarred parties, sanctioned parties, blocked
persons, and specially designated nationals.--The President
shall ensure that an official list is published semiannually
in the Federal Register of all parties denied or debarred
from export privileges under this title or under the Arms
Export Control Act, all parties sanctioned for prohibited
proliferation activity under this title or other statutes,
and all blocked persons and specially designated nationals.
For purposes of this paragraph, a ``blocked person'' or
``specially designated national'' is a person or entity so
designated by the President or the Secretary of the Treasury
under the Trading With the Enemy Act, or the International
Emergency Economic Powers Act, with whom transactions are
prohibited on account of the relationship of that person or
entity with a country, organization, or activity against
which sanctions are imposed under either such Act. Promptly
after any person is designated a ``blocked person'' or
``specially designated national'', the Secretary of the
Treasury shall publish such designation in the Federal
Register.
(2) Other parties.--The Secretary shall maintain a list of
parties for whom licenses under this title will be
presumptively denied.
(d) Delegation of Authority.--Subject to the provisions of
this title, the President may delegate the power, authority,
and discretion conferred upon the President by this title to
such departments, agencies, and officials of the Government
as the President considers appropriate, except that no
authority under this title may be delegated to, or exercised
by, any official of any department or agency the head of
which is not appointed by the President, by and with the
advice and consent of the Senate. The President may not
delegate or transfer his power, authority, or discretion to
overrule or modify any recommendation or decision made by the
Secretary, the Secretary of Defense, or the Secretary of
State under this title and may not delegate the authority
under section 106(a)(4).
(e) Notification of the Public; Consultation With
Business.--The Secretary shall keep the public fully apprised
of changes in export control policy and procedures instituted
in conformity with this title with a view to encouraging
trade. The Secretary shall consult regularly with
representatives of a broad spectrum of enterprises, labor
organizations, and citizens interested in or affected by
export controls, in order to obtain their views on United
States export control policy and the foreign availability of
items subject to controls.
(f) Export Advisory Committees.--
(1) Appointment.--Upon his or her own initiative or upon
the written request of representatives of a substantial
segment of any industry which produces any items subject to
export controls under this title or under the International
Emergency Economic Powers Act, or being considered for such
controls, the Secretary shall appoint export advisory
committees with respect to any such items. Each such
committee shall consist of representatives of United States
industry and Government, including the Department of Commerce
and other appropriate departments and agencies of the
Government. The Secretary shall permit the widest possible
participation by the business community on the export
advisory committees.
(2) Functions.--Export advisory committees appointed under
paragraph (1) shall advise and assist the Secretary, and any
other department, agency, or official of the Government
carrying out functions under this title, on actions
(including all aspects of controls imposed or proposed)
designed to carry out the policies of this title concerning
the items with respect to which such export advisory
committees were appointed. Such committees, where they have
expertise in such matters, shall be consulted on questions
involving--
(A) technical matters,
(B) worldwide availability and actual utilization of
production technology,
(C) licensing procedures which affect the level of export
controls applicable to any items,
[[Page H7565]]
(D) revisions of the multilateral control list (as provided
in section 105(g)), including proposed revisions of
multilateral controls in which the United States
participates,
(E) the issuance of regulations,
(F) the impact and interpretation of existing regulations,
(G) processes and procedures for review of licenses and
policy,
(H) any other questions relating to actions designed to
carry out this title, and
(I) the operation and conduct of international business
transactions.
Nothing in this subsection shall prevent the United States
Government from consulting, at any time, with any person
representing an industry or the general public, regardless of
whether such person is a member of an export advisory
committee. Members of the public shall be given a reasonable
opportunity, pursuant to regulations prescribed by the
Secretary, to present evidence to such committees.
(3) Reimbursement of expenses.--Upon the request of any
member of any export advisory committee appointed under
paragraph (1), the Secretary may, if the Secretary determines
it to be appropriate, reimburse such member for travel,
subsistence, and other necessary expenses incurred by such
member in connection with the duties of such member.
(4) Chairperson.--Each export advisory committee appointed
under paragraph (1) shall elect a chairperson, and shall meet
at least every 3 months at the call of the chairperson,
unless the chairperson determines, in consultation with the
other members of the committee, that such a meeting is not
necessary to achieve the purposes of this subsection. Each
such committee shall be terminated after a period of 2 years,
unless extended by the Secretary for additional periods of 2
years each. The Secretary shall consult with each such
committee on such termination or extension of that committee.
(5) Access to information.--To facilitate the work of the
export advisory committees appointed under paragraph (1), the
Secretary, in conjunction with other departments and agencies
participating in the administration of this title, shall
disclose to each such committee adequate information,
consistent with national security, pertaining to the reasons
for the export controls which are in effect or contemplated
for the items or policies for which that committee furnishes
advice. Information provided by the export advisory
committees 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.
(g) Development and Review of the Control Index.--
(1) In general.--
(A) Consistent with the general guidance of the Export
Control Policy Committee established in section 114(c), the
Secretary of Defense and the heads of other appropriate
departments and agencies may identify and recommend to the
Secretary--
(i) commodities and technology for inclusion on, or
deletion from, the multilateral and emergency control lists;
and
(ii) the licensing requirements that should or should not
apply to these commodities and technology.
(B) The Secretary of Defense shall have primary
responsibility for identifying commodities and technologies
that are critical to the design, development, test,
production, stockpiling, or use of weapons of mass
destruction and other military capabilities, including
nuclear, biological, and chemical weapons, and manned and
unmanned vehicles capable of delivering such weapons, in
determining recommendations for inclusion of items on the
control index.
(C) If the Secretary of Defense, the Secretary of State, or
the Secretary of Energy disagrees with the decision of the
Secretary regarding the inclusion or deletion, or licensing
requirements of, any commodity or technology, the Secretary
of Defense, State, or Energy (as the case may be) may, within
30 days after the Secretary makes the decision, appeal the
Secretary's decision to the President in writing, but only on
the basis of the specific provisions of this title. If the
Secretary of Defense, the Secretary of State, or the
Secretary of Energy fails to appeal a decision of the
Secretary in accordance with the preceding sentence, he or
she shall be deemed to have no objection to the decision. The
President shall resolve a disagreement under this subsection
not later than 30 days after the appeal is made under this
paragraph.
(2) Negotiations.--The Secretary of State, in consultation
with appropriate departments and agencies, shall be
responsible for conducting negotiations with other countries
regarding multilateral arrangements for restricting the
export of items to carry out the policies of this title. All
appropriate departments and agencies shall develop initial
technical parameters and product definitions in connection
with the development of proposals within the United States
Government to be made to multilateral regimes, in
consultation with the export advisory committees as provided
in paragraph (3).
(3) Consultations with export advisory committees.--The
Secretary shall consult with the appropriate export advisory
committee appointed under this section with respect to
changes in the control index, and such export advisory
committee may submit recommendations to the Secretary with
respect to such changes. The Secretary shall consider the
recommendations of the export advisory committee and shall
inform the committee of the disposition of its
recommendations. The Secretary shall also seek comments and
recommendations from the public in connection with changes in
the control index. To the maximum extent practicable and
consistent with the conduct of international negotiations,
such comments and recommendations should be taken into
consideration in the development of United States Government
proposals and positions to be taken in multilateral regimes.
(h) Right of Export.--No authority or permission to export
may be required under this title, or under regulations issued
under this title, except to carry out the policies set forth
in section 103.
(i) International Obligations Under Treaties.--
Notwithstanding any other provision of this title containing
limitations on authority to control exports, the Secretary,
in consultation with the Secretary of State, may impose
controls on exports to a particular country or countries in
order to fulfill obligations of the United States under
resolutions of the United Nations and under treaties to which
the United States is a party. The Secretary may regulate
domestic and foreign conduct consistent with the policies of
such United Nations resolutions, treaties, and other
international agreements. Such authority shall include, but
not be limited to, authority to prohibit activity such as
financing, contracting, providing services, or employment, to
deny access to items in the United States and abroad, to
conduct audits of records and inspections of facilities, to
compel reports, and to curtail travel.
(j) Fees.--No fee may be charged in connection with the
submission or processing of an export license application
under this title.
SEC. 105. MULTILATERAL CONTROLS.
(a) Authority.--
(1) In general.--In order to carry out the policies set
forth in paragraphs (1), (2), (5), (13), (14), and (15) of
section 103, the President may, in accordance with this
section, prohibit, curtail, or require the provision of
information regarding, the export of any commodities,
technology, or other information subject to the jurisdiction
of the United States, or exported by any person subject to
the jurisdiction of the United States, in order to implement
multilateral export control regimes. The authority under this
paragraph shall include, but not be limited to, the authority
to regulate domestic and foreign conduct, to prohibit
activity such as financing, contracting, providing services,
or employment, to deny access to items in the United States
and abroad, to conduct audits of records and inspections of
facilities, and to compel reports. The authority granted by
this subsection may not be exercised to impose unilateral
controls.
(2) Exercise of authority.--The authority granted by this
subsection shall be implemented by the Secretary, in
consultation with appropriate departments and agencies.
(3) Consistency with export control regimes.--Any provision
of this title that provides that no authority or permission
to export may be required under this title shall not apply to
the extent that such a provision is inconsistent with an
international commitment of the United States under a
multilateral export control regime.
(b) Multilateral Control List.--The Secretary shall, in
consultation with appropriate departments and agencies as
provided in section 104(g), designate as part of the control
index, a multilateral control list, comprised of the items on
which export controls are in effect under this section.
(c) Export Licensing Policies.--The President shall ensure
that steps are taken to increase the degree to which the
licensing requirements of other export regime members are
harmonized with the licensing requirements maintained by the
Secretary in controlling items under this section.
(d) Multilateral Control Regimes.--
(1) Policy.--In order to carry out the policies set forth
in section 103, the Secretary of State, in consultation with
appropriate departments and agencies, should seek
multilateral arrangements that are intended to secure
effective achievement of these policies and, in so doing,
also establish fairer and more predictable competitive
opportunities for United States exporters.
(2) Standards for national systems.--In the establishment
and maintenance of multilateral regimes, the Secretary of
State, in consultation with appropriate departments and
agencies, shall take steps to attain the cooperation of
members of the regimes in the effective implementation of
export control systems. Such systems should contain the
following elements:
(A) National laws providing enforcement authorities, civil
and criminal penalties, and statutes of limitations
sufficient to deter potential violations and punish
violators.
(B) A program to evaluate export license applications that
includes sufficient technical expertise to assess the
licensing status of exports and ensure the reliability of end
users.
(C) An enforcement mechanism that provides authority for
trained enforcement officers to investigate and prevent
illegal exports.
(D) A system of export control documentation to verify the
movement of items.
(E) Procedures for the coordination and exchange of
information concerning licensing, end users, and enforcement.
[[Page H7566]]
(F) Adequate national resources devoted to carrying out
subparagraphs (A) through (E).
(3) Standards for multilateral regimes.--In the
establishment and maintenance of multilateral regimes, the
Secretary of State, in consultation with appropriate
departments and agencies, should seek, consistent with the
policies set forth in section 103, the following features for
the multilateral control regimes in which the United States
participates:
(A) Full membership.--Achieve membership of all supplier
countries whose policies and activities are consistent with
the objectives and membership criteria of the multilateral
regime.
(B) Effective enforcement and compliance.--Promote
enforcement and compliance with the rules and guidelines of
the members of the regime through maintenance of an effective
control list.
(C) Public understanding.--Enhance public understanding of
each regime's purpose and procedures.
(D) Effective implementation procedures.--Achieve
procedures for effective implementation of the rules and
guidelines of the regime through uniform and consistent
interpretations of export controls agreed to by the
governments participating in the regime.
(E) Enhanced cooperation among regime members.--Reach
agreement to enhance cooperation among members of the regime
in obtaining the agreement of governments outside the regime
to restrict the export of items controlled by the regime, to
establish an ongoing mechanism in the regime to coordinate
planning and implementation of export control measures
related to such agreements, and to remove items from the list
of items controlled by the regime if the control of such
items no longer serves the objectives of the members of the
regime.
(F) Periodic high-level meetings.--Conduct periodic
meetings of high-level representatives of participating
governments for the purpose of coordinating export control
policies and issuing policy guidance to members of the
regime.
(G) Common list of controlled items.--Reach agreement on a
common list of items controlled by the regime.
(H) Treatment of certain countries.--Prevent the export or
diversion of the most sensitive items to countries whose
activities are threatening to the national security of the
United States or its allies.
(I) Disclosure of nonproprietary information.--Promote
transparency and timely disclosure of nonproprietary
information with respect to the transfers of sensitive dual-
use commodities and technologies, when appropriate, for the
purpose of developing common understandings of the risks to
international peace and regional security associated with
such transfers and to coordinate national control policies to
combat those risks.
(e) Incentives for Partnership.--Consistent with the
policies of this title and consistent with the objectives,
rules, and guidelines of the individual regime--
(1) the Secretary, in consultation with appropriate
departments and agencies, may provide for exports free of
license requirements to and among members of a multilateral
regime for items subject to controls under such a
multilateral regime; and
(2) the Secretary, in consultation with appropriate
departments and agencies, may adjust licensing policies with
respect to a particular country or entity for access to items
controlled under this title to the extent of the adherence of
that country or entity to the export control policies of this
section.
Actions by the Secretary under paragraphs (1) and (2) shall
be consistent with the requirements of section 111(a)(1)(C).
(f) Transparency of Multilateral Control Regimes.--
(1) Publication of information on each existing regime.--
Within 6 months after the date of the enactment of this Act,
the Secretary shall, to the extent doing so is not
inconsistent with arrangements in multilateral export control
regimes, publish in the Federal Register the following
information with respect to each multilateral control regime
existing on the date of the enactment of this Act:
(A) Purposes of the control regime.
(B) Members of the regime.
(C) Licensing policy.
(D) Items subject to the controls under the regime,
together with all public notes, understandings, and other
aspects of the agreement of the regime, and all changes
thereto.
(E) Any countries, end uses, or end users that are subject
to the controls.
(F) Rules of interpretation.
(G) Major policy actions.
(H) The rules and procedures of the regime for establishing
and modifying any matter described in subparagraphs (A)
through (G) and for reviewing export license applications.
(2) New regimes.--Within 2 months after the United States
joins or organizes a new export control regime, the Secretary
shall, to the extent doing so is not inconsistent with
arrangements in the regime, publish the information described
in subparagraphs (A) through (H) of paragraph (1) with
respect to that regime.
(3) Publication of changes.--Within 2 months after the
applicable regime adopts any changes in the information
published under this subsection, the Secretary shall, to the
extent doing so is not inconsistent with arrangements in the
regime, publish such changes in the Federal Register.
(g) Review of Controlled Items.--
(1) In general.--Under the policy guidance of the Export
Control Policy Committee established in section 114(c), and
consistent with the procedures in section 104(g), the
Secretary shall review all items on the multilateral control
list maintained under subsection (b) at least every 2 years,
except that the Secretary shall review annually whether the
policy set forth in section 103(12) is being achieved. At the
conclusion of each review, the Secretary shall decide whether
to maintain or remove items from the multilateral control
list, maintain, change, or eliminate the specifications,
performance thresholds, or licensing requirements on items on
the list, or add items to the list.
(2) Considerations.--In conducting the review, the
Secretary shall--
(A) consult with the Secretary of Defense concerning
militarily critical technologies;
(B) consult with the appropriate export advisory committees
appointed under section 104(f) and consider recommendations
of such committees with respect to proposed changes in the
multilateral control list;
(C) consider whether controlled items or their equivalent
are so widely available in the United States (in terms of
quantity, cost, and means of sale and delivery) that the
requirement for a license is ineffective in achieving the
purpose of the control;
(D) consider whether the differences between the export
controls of the United States and that of governments of
foreign suppliers of competing items effectively has placed
or will place the United States exporter at a significant
commercial disadvantage with respect to its competitors
abroad, and has placed, or will place, employment in the
United States in jeopardy;
(E) consider the results of determinations made under
section 114(k); and
(F) consider comments received pursuant to the notice of
review provided under paragraph (3)(A).
(3) Procedures.--
(A) Notice of review.--Before beginning each review under
this subsection, the Secretary shall publish a notice of that
review in the Federal Register and shall provide a 30-day
period for comments and submission of data, including by
exporters and other interested parties.
(B) Proposals to export control regimes.--If a revision to
the multilateral control list or to a licensing requirement
under this paragraph is inconsistent with the control lists,
guidelines, or the licensing requirements of, an export
control regime, the Secretary of State shall propose such
revision to that regime. Such revision shall become effective
only to the extent such revision is agreed to by the export
control regime.
(C) Publication of revisions.--The Secretary shall publish
in the Federal Register any revisions in the list, with an
explanation of the reasons for the revisions.
SEC. 106. EMERGENCY CONTROLS.
(a) Authority.--
(1) In general.--In order to carry out the policy set forth
in paragraphs (1), (2), (6), (8), (14), and (15) of section
103, the President may, in accordance with the provisions of
this section, unilaterally prohibit, curtail, or require the
provision of information regarding the export of any
commodity, technology, or other information subject to the
jurisdiction of the United States or exported by any person
subject to the jurisdiction of the United States. The
authority under this paragraph shall include, but not be
limited to, the authority to regulate domestic and foreign
conduct, to prohibit activity such as financing, contracting,
providing services, or employment, to deny access to items in
the United States and abroad, to conduct audits of records
and inspections of facilities, and to compel reports.
(2) Exercise of authority.--The authority contained in this
section shall be exercised by the Secretary, in consultation
with the Secretary of State, the Secretary of Defense, and
such other departments and agencies as the President
considers appropriate, and consistent with the procedures in
section 104(g).
(3) Expiration of controls.--
(A) In general.--Any controls imposed under this section
shall expire 12 months after they are imposed, unless they
are terminated earlier by the President or unless they are
extended under this section, except that such controls may be
adopted as multilateral controls under section 105 or
included in an embargo that is imposed by the President under
the International Emergency Economic Powers Act, the Trading
with the Enemy Act, or other provision of law other than this
title. Any extension or subsequent extension of the controls
under this section shall be for a period of not more than 1
year each. The controls shall expire at the end of each such
extension unless they are terminated earlier by the President
or unless they are further extended under this section,
except that such controls may be adopted as multilateral
controls under section 105 or included in an embargo
described in the first sentence of this subparagraph.
(B) Exception for multilateral agreements.--Subparagraph
(A) shall not apply to controls imposed by the President in
order to fulfill obligations of the United States under
resolutions of the United Nations or under treaties to which
the United States is a party. If such a resolution or treaty
ceases to be in effect, controls imposed by the
[[Page H7567]]
President pursuant to such resolution or treaty shall
immediately cease to be in effect.
(4) Criteria.--Controls may be imposed, expanded, or
extended under this section only if the President determines
that--
(A) the controls are necessary to further significantly the
nonproliferation, national security, or foreign policies of
the United States provided in section 103, the objective of
the controls is in the overall national interest of the
United States, and reasonable alternative means to the
controls are not available;
(B) the controls are likely to make substantial progress
toward achieving the intended purpose of--
(i) changing, modifying, or constraining the undesirable
conduct or policies of the country to which the controls
apply;
(ii) denying access by the country to controlled items from
all sources;
(iii) establishing multilateral cooperation to deny the
country access to controlled items from all sources; or
(iv) denying exports or assistance that significantly
contributes to the proliferation of weapons of mass
destruction or other important military capabilities,
terrorism, or human rights abuses;
(C) the proposed controls are compatible with the foreign
policy objectives of the United States and with overall
United States policy toward the country to which the controls
apply;
(D) the reaction of other countries to the imposition,
expansion, or extension of such export controls by the United
States is not likely to render the controls ineffective in
achieving the intended purpose or to be counter-productive to
United States policy interests;
(E) the effect of the proposed controls on the export
performance of the United States, the competitive position of
the United States as a supplier of items, or on the economic
well-being of individual United States companies and their
employees and communities does not exceed the benefit to the
United States foreign policy, nonproliferation, or national
security interests; and
(F) the United States has the ability to enforce the
proposed controls effectively.
(b) Consultation With Industry.--The Secretary shall
consult with and seek advice from affected United States
industries and export advisory committees appointed under
section 104(f) before the imposition, expansion, or extension
of any export control under this section.
(c) Consultation With Other Countries.--When expanding or
extending export controls under this section (unless such
action is taken under subsection (a)(3)(B)), the Secretary of
State, in consultation with appropriate departments and
agencies, shall, at the earliest appropriate opportunity,
consult with the countries with which the United States
maintains export controls cooperatively, and with other
countries, as appropriate, to advise them of the reasons for
the action and to urge them to adopt similar controls.
(d) Consultations With the Congress.--
(1) Consultations.--The Secretary may impose, expand, or
extend export controls under this section only after
consultation with the Congress, including the Committee on
International Relations of the House of Representatives and
the Committee on Banking, Housing, and Urban Affairs of the
Senate.
(2) Reports.--The Secretary may not impose or expand
controls under subsection (a) until the Secretary has
submitted to the Congress a report--
(A) addressing each of the criteria set forth in subsection
(a)(4);
(B) specifying the purpose of the controls;
(C) describing the nature, the subjects, and the results
of, or plans for, the consultation with industry under
subsection (b) and with other countries under subsection (c);
(D) specifying the nature and results of any alternative
means attempted to achieve the objectives of the controls, or
the reasons for imposing or expanding the controls without
attempting any such alternative means; and
(E) describing the availability from other countries of
items comparable to the items subject to the controls, and
describing the nature and results of the efforts made to
secure the cooperation of foreign governments in controlling
the foreign availability of such comparable items.
Such report shall also indicate how such controls will
further significantly the policies of the United States as
set forth in section 103 or will further its declared
international obligations.
(e) Seeking Multilateral Support for Unilateral Controls.--
The Secretary of State, in consultation with appropriate
departments and agencies, shall have a continuing duty to
seek support for controls imposed under this section by other
countries and by effective multilateral control regimes.
(f) Procedures and Limitations on Emergency Controls.--
(1) Cessation of emergency controls.--
(A) In general.--Controls imposed under this section on
commodities, technology, or other information shall cease to
be in effect immediately upon--
(i) the imposition of similarly restrictive controls under
section 105 on the same commodities, technology, or
information to the country or end user, or for the end use,
with respect to which the controls were imposed under this
section; or
(ii) the imposition of an embargo, under the International
Emergency Economic Powers Act, the Trading with the Enemy
Act, or other provision of law, on exports to, and imports
from the country with respect to which the controls were
imposed under this section.
(B) Conversion to multilateral agreements.--If the
President imposes controls on commodities, technology, or
other information to a country or end user, or for an end
use, under this section in order to fulfill obligations of
the United States under resolutions of the United Nations or
under a treaty to which the United States is a party, any
equivalent controls imposed prior thereto under this section
on the same commodities, technology, or information to the
same country or end user, or for the same end use, shall
immediately cease to be in effect.
(2) Limitations on reimposition.--Controls which have
ceased to be in effect under subsection (a)(3), and which
have not been extended under subsection (g), may not be
reimposed by the President under subsection (a) for a period
of 6 months beginning on the date on which the original
controls expire, unless the President determines that
reimposition of controls is warranted due to significant
changes in circumstances since the expiration of the
controls.
(g) Extension of Emergency Controls.--
(1) Report.--If the President decides to extend controls
imposed under subsection (a), which are due to expire under
subsection (a)(3), the President shall, not later than 30
calendar days before the expiration of such controls,
transmit to the Congress a report on the proposed extension,
setting forth the reasons for the proposed extension in
detail and specifying the period of time, which may not
exceed 1 year, for which the controls are proposed to be
extended. In particular, such report shall--
(A) contain determinations by the President--
(i) that the controls are likely to continue to make
substantial progress toward achieving the intended purpose
of--
(I) changing, modifying, or constraining the undesirable
conduct or policies of the country to which the controls
apply;
(II) denying access by the country to controlled items from
all sources;
(III) establishing multilateral cooperation to deny the
country access to controlled items from all sources; or
(IV) denying exports or assistance that significantly
contributes to the proliferation of weapons of mass
destruction or other important military capabilities,
terrorism, or human rights abuses;
(ii) that the impact of the controls has been compatible
with the foreign policy objectives of the United States and
with overall United States policy toward the controlled
country;
(iii) that the reaction of other countries to the
imposition or expansion of the controls by the United States
has not rendered the controls ineffective in achieving the
intended purpose and have not been counterproductive to
United States policy interests;
(iv) that the effect of the controls on the export
performance of the United States, the competitive position of
the United States as a supplier of items, and the economic
well-being of individual United States companies and their
employees and communities has not exceeded the benefit to the
United States foreign policy, nonproliferation, or national
security interests; and
(v) that the United States has enforced the controls
effectively.
(2) Further extensions of controls.--If, upon the
expiration of the controls extended under this subsection,
the President determines that a further extension of
emergency controls for an additional period of time of not
more than 1 year is necessary, paragraph (1) shall apply to
such further extension.
(h) Effect on Other Authority.--
(1) Embargo authority.--Nothing in this section shall be
construed to limit the authority of the President to impose
an embargo on exports to, and imports from, a specific
country under the International Emergency Economic Powers
Act, the Trading with the Enemy Act, or other provision of
law (other than this title). In any case in which the
President exercises any such authority to impose an embargo,
the requirements of this section shall not apply for so long
as such embargo is in effect.
(2) Effect on existing embargoes.--(A) Nothing in this
section affects the authorities conferred upon the President
by section 5(b) of the Trading with the Enemy Act, which were
being exercised with respect to a country on July 1, 1977, as
a result of a national emergency declared by the President
before that date, and are being exercised on the date of the
enactment of this Act.
(B) Nothing in this section affects the authorities
conferred upon the President by the International Economic
Powers Act or other provision of law (other than the Export
Administration Act of 1979), which were being exercised with
respect to a country before the date of the enactment of this
Act as a result of a national emergency declared by the
President before that date, and are being exercised with
respect to such country on such date of enactment.
(i) Countries Supporting International Terrorism.--
(1) Prohibition on exports.--(A) No export described in
subparagraph (B) may be made to any country the government of
which the Secretary of State has determined has repeatedly
provided support for acts of international terrorism.
[[Page H7568]]
(B) The exports referred to in subparagraph (A) are--
(i) of any commodity or technology the export of which is
controlled under this title pursuant to the Wassenaar
Arrangement, the Missile Technology Control Regime, or the
Australia Group, or controlled under this title pursuant to
section 309(c) of the Nuclear Non-Proliferation Act of 1978,
(ii) of any other commodity or technology the export of
which is controlled under this title pursuant to multilateral
export control regimes in which the United States
participates, and
(iii) of any commodity or technology which could make a
significant contribution to the military potential of a
country described in subparagraph (A), including its military
logistics capability, or could enhance the ability of such
country to support acts of international terrorism,
other than food, medicine, or medical supplies that the
President determines will be used only for humanitarian
purposes. An individual validated license shall be required
for the export under this subparagraph of any such food,
medicine, or medical supplies.
(C) Subsections (a)(3) and (b) shall not apply to exports
prohibited or restricted under this subsection.
(D)(i) The Secretary shall maintain a list of commodities
and technology described in subparagraph (B)(iii). The
Secretary shall review the list of items on that list at
least annually. At the conclusion of the review, the
Secretary shall determine whether to remove items from the
list, change the specifications of items on the list, or add
items to the list, in order to ensure that the items on the
list meet the requirements of subparagraph (B)(iii).
(ii) The procedures set forth in subparagraphs (A) and (C)
of section 105(g)(3) shall apply to reviews under clause (i)
of the list of items described in subparagraph (B)(iii) to
the same extent as such section applies to reviews of the
control list under section 105(g).
(2) Notification of congress of licenses issued.--The
Secretary and the Secretary of State shall notify the Speaker
of the House of Representatives and the Committee on Banking,
Housing, and Urban Affairs and the Committee on Foreign
Relations of the Senate at least 30 days before issuing any
license under this title for exports to a country the
government of which the Secretary of State has determined has
repeatedly provided support for acts of international
terrorism.
(3) Publication of determinations.--Each determination of
the Secretary of State under paragraph (1)(A) shall be
published in the Federal Register.
(4) Rescission of determinations.--A determination made by
the Secretary of State under paragraph (1)(A) may not be
rescinded unless the President submits to the Speaker of the
House of Representatives and the chairman of the Committee on
Banking, Housing, and Urban Affairs and the chairman of the
Committee on Foreign Relations of the Senate--
(A) before the proposed rescission would take effect, a
report certifying that--
(i) there has been a fundamental change in the leadership
and policies of the government of the country concerned;
(ii) that government is not supporting acts of
international terrorism; and
(iii) that government has provided assurances that it will
not support acts of international terrorism in the future; or
(B) at least 45 days before the proposed rescission would
take effect, a report justifying the rescission and
certifying that--
(i) the government concerned has not provided any support
for international terrorism during the preceding 6-month
period; and
(ii) the government concerned has provided assurances that
it will not support acts of international terrorism in the
future.
(5) Waiver of prohibitions.--The President may waive the
prohibitions contained in paragraph (1)(A) with respect to a
specific transaction if--
(A) the President determines that the transaction is
essential to the national security interests of the United
States; and
(B) not less than 30 days prior to the proposed
transaction, the President--
(i) consults with the Committee on International Relations
of the House of Representatives and the Committee on Banking,
Housing, and Urban Affairs of the Senate regarding the
proposed transaction; and
(ii) submits to the Speaker of the House of Representatives
and the chairman of the Committee on Banking, Housing, and
Urban Affairs of the Senate a report containing--
(I) the name of any country involved in the proposed
transaction, the identity of any recipient of the items to be
provided pursuant to the proposed transaction, and the
anticipated use of those items;
(II) a description of the items involved in the proposed
transaction (including their market value) and the actual
sale price at each step in the transaction;
(III) the reasons why the proposed transaction is essential
to the national security interests of the United States and
the justification for the proposed transaction;
(IV) the date on which the proposed transaction is expected
to occur; and
(V) the name of any foreign governments involved in the
proposed transaction.
To the extent possible, the information specified in clause
(ii) of subparagraph (B) shall be provided in unclassified
form.
(6) Multilateral regimes.--The Secretary of State, in
consultation with appropriate departments and agencies, shall
seek support by other countries and by effective multilateral
control regimes of controls imposed by this subsection.
(7) Effect on other laws.--The provisions of this
subsection do not affect any other provision of law to the
extent such other provision imposes greater restrictions on
exports to any country the government of which the Secretary
of State has determined has repeatedly provided support for
acts of international terrorism than are imposed under this
subsection.
(j) Crime Control Instruments.--
(1) License required.--Crime control and detection
instruments and equipment shall be approved for export by the
Secretary only pursuant to an export license. Paragraphs
(3)(A) and (4) of subsection (a) shall not apply to the
export controls imposed by this subsection.
(2) Concurrence of secretary of state.--
(A) Items on control index.--Any determination of the
Secretary of what commodities or technology shall be included
on the control index as a result of the export restrictions
imposed by this subsection shall be made with the concurrence
of the Secretary of State.
(B) Action on license application.--Any determination of
the Secretary to approve or deny an export license
application to export crime control or detection instruments
or equipment shall be made with the concurrence of the
Secretary of State.
(3) Dispute resolution.--If the Secretary of State does not
agree with the Secretary with respect to any determination
under paragraph (2), the Secretary of State shall refer the
matter to the President for resolution.
(4) Exceptions.--The provisions of this subsection shall
not apply with respect to exports to countries which are
members of the North Atlantic Treaty Organization or to
Japan, Australia, or New Zealand, or to such other countries
as the President shall designate consistent with the purposes
of this subsection and section 502B of the Foreign Assistance
Act of 1961.
(k) Spare Parts.--At the same time as the President imposes
or expands export controls under this section, the President
shall determine whether such export controls will apply to
replacement parts or parts in commodities subject to such
export controls.
(l) Effect on Other Laws.--None of the prohibitions
contained in this section shall apply to any transaction
subject to the reporting requirements of title V of the
National Security Act of 1947.
SEC. 107. SHORT SUPPLY CONTROLS.
(a) Authority.--
(1) In general.--In order to carry out the policy set forth
in section 103(4), the President may prohibit or curtail the
export of any commodities subject to the jurisdiction of the
United States or exported by any person subject to the
jurisdiction of the United States. In curtailing exports to
carry out the policy set forth in section 103(4), the
President shall allocate a portion of export licenses on the
basis of factors other than a prior history of exportation.
Such factors shall include the extent to which a country
engages in equitable trade practices with respect to United
States commodities and treats the United States equitably in
times of short supply.
(2) Public participation.--Upon imposing quantitative
restrictions on exports of any commodities to carry out the
policy set forth in section 103(4), the Secretary shall
include in a notice published in the Federal Register with
respect to such restrictions an invitation to all interested
parties to submit written comments within 15 days after the
date of publication on the impact of such restrictions and
the method of licensing used to implement them.
(3) License fees.--In imposing export controls under this
section, the President's authority shall include, but not be
limited to, the imposition of export license fees.
(b) Monitoring.--
(1) In general.--In order to carry out the policy set forth
in section 103(4), the Secretary shall monitor exports, and
contracts for exports, of any commodity (other than a
commodity which is subject to the reporting requirements of
section 602 of the Agricultural Trade Act of 1978 (7 U.S.C.
5712)) when the volume of such exports in relation to
domestic supply contributes, or may contribute, to an
increase in domestic prices or a domestic shortage, and such
price increase or shortage has, or may have, a serious
adverse impact on the economy or any sector thereof. Any such
monitoring shall commence at a time adequate to assure that
the monitoring will result in a data base sufficient to
enable policies to be developed, in accordance with section
103(4), to mitigate a short supply situation or serious
inflationary price rise or, if export controls are needed, to
permit imposition of such controls in a timely manner.
Information which the Secretary requires to be furnished in
effecting such monitoring shall be confidential, except as
provided in paragraph (2).
(2) Reports on monitoring.--The results of monitoring under
paragraph (1) shall, to the extent practicable, be aggregated
and included in weekly reports setting forth, with respect to
each item monitored, actual and anticipated exports, the
destination by country, and the domestic and worldwide price,
supply, and demand. Such reports may be made monthly if the
Secretary determines that there is insufficient information
to justify weekly reports.
[[Page H7569]]
(3) Consultation with secretary of energy.--The Secretary
shall consult with the Secretary of Energy to determine
whether monitoring or export controls under this section are
warranted with respect to exports of facilities, machinery,
or equipment normally and principally used, or intended to be
used, in the production, conversion, or transportation of
fuels and energy (except nuclear energy), including, but not
limited to--
(A) drilling rigs, platforms, and equipment;
(B) petroleum refineries, and natural gas processing,
liquefaction, and gasification plants;
(C) facilities for production of synthetic natural gas or
synthetic crude oil;
(D) oil and gas pipelines, pumping stations, and associated
equipment; and
(E) vessels for transporting oil, gas, coal, and other
fuels.
(c) Petitions for Monitoring or Controls of Metallic
Materials.--
(1) In general.--(A) Any entity, including a trade
association, firm, or certified or recognized union or group
of workers, that is representative of an industry or a
substantial segment of an industry that processes metallic
materials capable of being recycled may transmit a written
petition to the Secretary requesting the monitoring of
exports or the imposition of export controls, or both, with
respect to any such material, in order to carry out the
policy set forth in section 103(4).
(B) Each petition shall be in such form as the Secretary
shall prescribe and shall contain information in support of
the action requested. The petition shall include any
information reasonably available to the petitioner indicating
that each of the criteria set forth in paragraph (3)(A) is
satisfied.
(2) Publication of notice.--Within 15 days after receipt of
any petition described in paragraph (1), the Secretary shall
publish a notice in the Federal Register. The notice shall--
(A) include the name of the material that is the subject to
the petition;
(B) include the schedule B number of the material as set
forth in the Statistical Classification of Domestic and
Foreign Commodities Exported from the United States;
(C) indicate whether the petition is requesting that
controls or monitoring, or both, be imposed with respect to
the exportation of such material; and
(D) provide that interested persons shall have a period of
30 days beginning on the date on which the notice is
published to submit to the Secretary written data, views, or
arguments, with or without opportunity for oral presentation,
with respect to the matter involved.
At the request of the petitioner or any other entity
described in paragraph (1)(A) with respect to the material
which is the subject of the petition, or at the request of
any entity representative of producers or exporters of such
material, the Secretary shall conduct public hearings with
respect to the subject of the petition, in which case the 30-
day period may be extended to 45 days.
(3) Determination of monitoring or controls.--(A) Within 45
days after the end of the 30- or 45-day period described in
paragraph (2), as the case may be, the Secretary shall
determine whether to impose monitoring or controls, or both,
on the export of the material that is the subject of the
petition in order to carry out the policy set forth in
section 103(4). In making such determination, the Secretary
shall determine whether--
(i) there has been a significant increase, in relation to a
specific period of time, in exports of such material in
relation to domestic supply and demand;
(ii) there has been a significant increase in domestic
price of such material or a domestic shortage of such
material relative to demand;
(iii) exports of such material are as important as any
other cause of a domestic price increase or shortage relative
to demand found under clause (ii);
(iv) a domestic price increase or shortage relative to
demand found under clause (ii) has significantly adversely
affected or may significantly adversely affect the national
economy or any sector thereof, including a domestic industry;
and
(v) monitoring or controls, or both, are necessary in order
to carry out the policy set forth in section 103(4).
(B) The Secretary shall publish in the Federal Register a
detailed statement of the reasons for the Secretary's
determination under subparagraph (A) of whether to impose
monitoring or controls, or both, including the findings of
fact in support of that determination.
(4) Publication of regulations.--Within 15 days after
making a determination under paragraph (3) to impose
monitoring or controls on the export of a material, the
Secretary shall publish in the Federal Register proposed
regulations with respect to such monitoring or controls.
Within 30 days after the publication of such proposed
regulations, and after considering any public comments on the
proposed regulations, the Secretary shall publish and
implement final regulations with respect to such monitoring
or controls.
(5) Consolidation of petitions.--For purposes of publishing
notices in the Federal Register and scheduling public
hearings pursuant to this subsection, the Secretary may
consolidate petitions, and responses to such petitions, which
involve the same or related materials.
(6) Subsequent petitions on same material.--If a petition
with respect to a particular material or group of materials
has been considered in accordance with all the procedures
described in this subsection, the Secretary may determine, in
the absence of significantly changed circumstances, that any
other petition with respect to the same material or group of
materials which is filed within 6 months after the
consideration of the prior petition has been completed does
not merit complete consideration under this subsection.
(7) Precedence of procedures over other reviews.--The
procedures and time limits set forth in this subsection with
respect to a petition filed under this subsection shall take
precedence over any review undertaken at the initiative of
the Secretary with respect to the same subject as that of the
petition.
(8) Temporary controls.--The Secretary may impose
monitoring or controls, on a temporary basis, on the export
of a metallic material after a petition is filed under
paragraph (1)(A) with respect to that material but before the
Secretary makes a determination under paragraph (3) with
respect to that material only if--
(A) the failure to take such temporary actions would result
in irreparable harm to the entity filing the petition, or to
the national economy or segment thereof, including a domestic
industry, and
(B) the Secretary considers such action to be necessary to
carry out the policy set forth in section 103(4).
(9) Other authority not affected.--The authority under this
subsection shall not be construed to affect the authority of
the Secretary under any other provision of this title, except
that if the Secretary determines, on the Secretary's own
initiative, to impose monitoring or controls, or both, on the
export of metallic materials capable of being recycled, under
the authority of this section, the Secretary shall publish
the reasons for such action in accordance with paragraph
(3)(A) and (B).
(10) Submission and consideration of additional
information.--Nothing contained in this subsection shall be
construed to preclude submission on a confidential basis to
the Secretary of information relevant to a decision to impose
or remove monitoring or controls under the authority of this
title, or to preclude consideration of such information by
the Secretary in reaching decisions required under this
subsection. The provisions of this paragraph shall not be
construed to affect the applicability of section 552(b) of
title 5, United States Code.
(d) Agricultural Commodities.--
(1) Approval of controls by secretary of agriculture.--The
authority conferred by this section shall not be exercised
with respect to any agricultural commodity, including fats
and oils, forest products, or animal hides or skins, without
the approval of the Secretary of Agriculture. The Secretary
of Agriculture shall not approve the exercise of such
authority with respect to any such commodity during any
period for which the supply of such commodity is determined
by the Secretary of Agriculture to be in excess of the
requirements of the domestic economy, except to the extent
the President determines that the controls on such
agricultural commodities are also imposed under section 106.
The Secretary of Agriculture shall, by exercising the
authority which the Secretary of Agriculture has under other
applicable provisions of law, collect data with respect to
export sales of animal hides and skins.
(2) Protection of stored commodities from future
controls.--Upon approval of the Secretary, in consultation
with the Secretary of Agriculture, agricultural commodities
purchased by or for use in a foreign country may remain in
the United States for export at a later date free from any
quantitative limitations on export which may be imposed to
carry out the policy set forth in section 103(4) subsequent
to such approval. The Secretary may not grant such approval
unless the Secretary receives adequate assurance and, in
conjunction with the Secretary of Agriculture, finds--
(A) that such commodities will eventually be exported,
(B) that neither the sale nor export thereof will result in
an excessive drain of scarce material and have a serious
domestic inflationary impact,
(C) that storage of such commodities in the United States
will not unduly limit the space available for storage of
domestically owned commodities, and
(D) that the purpose of such storage is to establish a
reserve of such commodities for later use, not including
resale to or use by another country.
The Secretary may issue such regulations as may be necessary
to carry out this paragraph.
(3) Procedures for imposing controls.--(A) If the President
imposes export controls on any agricultural commodity under
section 106 or this section, the President shall immediately
transmit a report on such action to the Congress, setting
forth the reasons for the controls in detail and specifying
the period of time, which may not exceed 1 year, that the
controls are proposed to be in effect. If the Congress,
within 60 days after the date of the receipt of the report,
enacts a joint resolution pursuant to paragraph (4) approving
the imposition of the export controls, then such controls
shall remain in effect for the period specified in the
report, or until terminated by the President, whichever
occurs first. If the Congress, within 60 days
[[Page H7570]]
after the date of its receipt of such report, fails to adopt
a joint resolution approving such controls, then such
controls shall cease to be effective upon the expiration of
that 60-day period.
(B) The provisions of subparagraph (A) and paragraph (4)
shall not apply to export controls--
(i) which are extended under this title if the controls,
when imposed, were approved by the Congress under
subparagraph (A) and paragraph (4); or
(ii) which are imposed with respect to a country as part of
the prohibition or curtailment of all exports to that
country.
(4) Expedited procedures.--(A) For purposes of this
paragraph, the term ``joint resolution'' means only a joint
resolution the matter after the resolving clause of which is
as follows: ``That pursuant to section 107(d)(3) of the
Export Administration Act of 1996, the President may impose
export controls as specified in the report submitted to the
Congress on ______.'', with the blank space being filled with
the appropriate date.
(B) On the day on which a report is submitted to the House
of Representatives and the Senate under paragraph (3), a
joint resolution with respect to the export controls
specified in such report shall be introduced (by request) in
the House by either the chairman of the Committee on
International Relations, for the chairman and the ranking
minority member of the Committee, or by Members of the House
designated by the chairman and ranking minority member; and
shall be introduced (by request) in the Senate by the
majority leader of the Senate, for the majority leader and
the minority leader of the Senate, or by Members of the
Senate designated by the majority leader and minority leader
of the Senate. If either House is not in session on the day
on which such a report is submitted, the joint resolution
shall be introduced in that House, as provided in the
preceding sentence, on the first day thereafter on which that
House is in session.
(C) If the committee of either House to which a joint
resolution has been referred has not reported the joint
resolution at the end of 30 days after its referral, the
committee shall be discharged from further consideration of
the resolution.
(D) A joint resolution under this paragraph shall be
considered in the Senate in accordance with the provisions of
section 601(b)(4) of the International Security Assistance
and Arms Export Control Act of 1976. For the purpose of
expediting the consideration and passage of joint resolutions
reported to the House of Representatives by the Committee on
International Relations under this paragraph, a motion to
proceed to the consideration in the House of any such joint
resolution shall be considered as highly privileged if
offered by the chairman of the committee or a designee on or
after the third day the report on the joint resolution has
been available to Members pursuant to clause 2(l)(6) of rule
XI of the Rules of the House of Representatives. The motion
shall not be subject to debate or to intervening motion or
otherwise subject to points of order, nor shall it be in
order to move to reconsider the vote by which the motion is
agreed to or not agreed to. If the motion is agreed to, the
joint resolution shall be considered in the House and
debatable for not to exceed two hours equally divided and
controlled by the chairman and ranking minority member of the
committee. The previous question shall be considered as
ordered on the joint resolution to final passage without
intervening motion.
(E) In the case of a joint resolution described in
subparagraph (A), if, before the passage by one House of a
joint resolution of that House, that House receives a
resolution with respect to the same matter from the other
House, then--
(i) the procedure in that House shall be the same as if no
joint resolution has been received from the other House; but
(ii) the vote on final passage shall be on the joint
resolution of the other House.
(5) Computation of time periods.--In the computation of the
period of 60 days referred to in paragraph (3)(A) and the
period of 30 days referred to in paragraph (4)(C), there
shall be excluded the days on which either House of Congress
is not in session because of an adjournment of more than 3
days to a day certain or because of an adjournment of the
Congress sine die.
(6) Rulemaking Power.--The provisions of this subsection
are enacted by the Congress--
(A) as an exercise of the rulemaking power of the House of
Representatives and the Senate, respectively, and as such,
they shall be considered as part of the rules of each House,
respectively, or of that House to which they specifically
apply, and such rules shall supersede other rules only to the
extent that they are inconsistent therewith; and
(B) with full recognition of the constitutional right of
either House to change such rules (so far as relating to such
House) at any time, in the same manner, and to the same
extent as in the case of any other rule of such House.
(e) Barter Agreements.--
(1) Exemption from controls.--The exportation pursuant to a
barter agreement of any commodities which may lawfully be
exported from the United States, for any commodities which
may lawfully be imported into the United States, may be
exempted, in accordance with paragraph (2), from any
quantitative limitation on exports (other than any reporting
requirement) imposed to carry out the policy set forth in
section 103(4).
(2) Criteria for exemption.--The Secretary shall grant an
exemption under paragraph (1) if the Secretary finds, after
consultation with the appropriate department or agency of the
United States, that--
(A) for the period during which the barter agreement is to
be performed--
(i) the average annual quantity of the commodities to be
exported pursuant to the barter agreement will not be
required to satisfy the average amount of such commodities
estimated to be required annually by the domestic economy and
will be surplus thereto; and
(ii) the average annual quantity of the commodities to be
imported will be more than the average amount of such
commodities estimated to be required annually to supplement
domestic production; and
(B) the parties to such barter agreement have demonstrated
adequately that they intend, and have the capacity, to
perform such barter agreement.
(3) Definition.--For purposes of this subsection, the term
``barter agreement'' means any agreement which is made for
the exchange, without monetary consideration, of any
commodities produced in the United States for any commodities
produced outside of the United States.
(4) Applicability.--This subsection shall apply only with
respect to barter agreements entered into after September 30,
1979.
(f) Effect of Controls on Existing Contracts.--
(1) Western red cedar.--Any export controls imposed under
section 7(i) of the Export Administration Act of 1979 or this
section shall not affect any contract to harvest unprocessed
western red cedar from State lands which was entered into
before October 1, 1979, and the performance of which would
make the red cedar available for export.
(2) Other controls.--Any export controls imposed under this
section on any agricultural commodity (including fats, oils,
forest products, and animal hides and skins), or on any
fishery product, shall not affect any contract to export
entered into before the date on which such controls are
imposed. For purposes of this paragraph, the term ``contract
to export'' includes, but is not limited to, an export sales
agreement and an agreement to invest in an enterprise which
involves the export of commodities or technology.
(g) Oil Exports for Use by United States Military
Facilities.--For purposes of this section, and for purposes
of any export controls imposed under this title, shipments of
crude oil, refined petroleum products, or partially refined
petroleum products from the United States for use by the
Department of Defense or United States-supported
installations or facilities shall not be considered to be
exports.
SEC. 108. FOREIGN BOYCOTTS.
(a) Prohibitions and Exceptions.--
(1) Prohibitions.--In order to carry out the policies set
forth in section 103(9), the President shall issue
regulations prohibiting any United States person, with
respect to that person's activities in the interstate or
foreign commerce of the United States, from taking or
knowingly agreeing to take any of the following actions with
intent to comply with, further, or support any boycott
fostered or imposed by a foreign country against a country
which is friendly to the United States and which is not
itself the object of any form of boycott pursuant to United
States law or regulation:
(A) Refusing, or requiring any other person to refuse, to
do business with or in the boycotted country, with any
business concern organized under the laws of the boycotted
country, with any national or resident of the boycotted
country, or with any other person, pursuant to an agreement
with, a requirement of, or a request from or on behalf of the
boycotting country. The mere absence of a business
relationship with or in the boycotted country, with any
business concern organized under the laws of the boycotted
country, with any national or resident of the boycotted
country, or with any other person, does not indicate the
existence of the intent required to establish a violation of
regulations issued to carry out this subparagraph.
(B) Refusing, or requiring any other person to refuse, to
employ or otherwise discriminating against any United States
person on the basis of the race, religion, sex, or national
origin of that person or of any owner, officer, director, or
employee of such person.
(C) Furnishing information with respect to the race,
religion, sex, or national origin of any United States person
or of any owner, officer, director, or employee of such
person.
(D) Furnishing information about whether any person has,
has had, or proposes to have any business relationship
(including a relationship by way of sale, purchase, legal or
commercial representation, shipping or other transport,
insurance, investment, or supply) with or in the boycotted
country, with any business concern organized under the laws
of the boycotted country, with any national or resident of
the boycotted country, or with any other person that is known
or believed to be restricted from having any business
relationship with or in the boycotting country. Nothing in
this paragraph shall prohibit the furnishing of normal
business information in a commercial context as defined by
the Secretary.
(E) Furnishing information about whether any person is a
member of, has made a contribution to, or is otherwise
associated with or involved in the activities of any
charitable or fraternal organization which supports the
boycotted country.
[[Page H7571]]
(F) Paying, honoring, confirming, or otherwise implementing
a letter of credit which contains any condition or
requirement compliance with which is prohibited by
regulations issued pursuant to this paragraph, and no United
States person shall, as a result of the application of this
paragraph, be obligated to pay or otherwise honor or
implement such letter of credit.
(2) Exceptions.--Regulations issued pursuant to paragraph
(1) shall provide exceptions for--
(A) complying or agreeing to comply with requirements--
(i) prohibiting the import of commodities or services from
the boycotted country or commodities produced or services
provided by any business concern organized under the laws of
the boycotted country or by nationals or residents of the
boycotted country; or
(ii) prohibiting the shipment of commodities to the
boycotting country on a carrier of the boycotted country, or
by a route other than that prescribed by the boycotting
country or the recipient of the shipment;
(B) complying or agreeing to comply with import and
shipping document requirements with respect to the country of
origin, the name of the carrier and route of shipment, the
name of the supplier of the shipment, or the name of the
provider of other services, except that no information
knowingly furnished or conveyed in response to such
requirements may be stated in negative, blacklisting, or
similar exclusionary terms, other than with respect to
carriers or route of shipment as may be permitted by such
regulations in order to comply with precautionary
requirements protecting against war risks and confiscation;
(C) complying or agreeing to comply in the normal course of
business with the unilateral and specific selection by a
boycotting country, or national or resident thereof, of
carriers, insurers, suppliers of services to be performed
within the boycotting country, or specific commodities which,
in the normal course of business, are identifiable by source
when imported into the boycotting country;
(D) complying or agreeing to comply with export
requirements of the boycotting country relating to shipments
or transshipment of exports to the boycotted country, to any
business concern of or organized under the laws of the
boycotted country, or to any national or resident of the
boycotted country;
(E) compliance by an individual or agreement by an
individual to comply with the immigration or passport
requirements of any country with respect to such individual
or any member of such individual's family or with requests
for information regarding requirements of employment of such
individual within the boycotting country; and
(F) compliance by a United States person resident in a
foreign country or agreement by such person to comply with
the laws of the country with respect to such person's
activities exclusively therein, and such regulations may
contain exceptions for such resident complying with the laws
or regulations of the foreign country governing imports into
such country of trademarked, trade named, or similarly
specifically identifiable products, or components of products
for such person's own use, including the performance of
contractual services within that country, as may be defined
by such regulations.
(3) Limitation on exceptions.--Regulations issued pursuant
to paragraphs (2)(C) and (2)(F) shall not provide exceptions
from paragraphs (1)(B) and (1)(C).
(4) Antitrust and civil rights laws not affected.--Nothing
in the subsection may be construed to supersede or limit the
operation of the antitrust or civil rights laws of the United
States.
(5) Evasion.--This section shall apply to any transaction
or activity undertaken, by or through a United States person
or any other person, with intent to evade the provisions of
this section as implemented by the regulations issued
pursuant to this subsection, and such regulations shall
expressly provide that the exceptions set forth in paragraph
(2) shall not permit activities or agreements (expressed or
implied by a course of conduct, including a pattern of
responses) otherwise prohibited, which are not within the
intent of such exceptions.
(b) Additional Regulations and Reports.--
(1) Regulations.--In addition to the regulations issued
pursuant to subsection (a), regulations issued under section
106 shall implement the policies set forth in section 103(9).
(2) Reports by united states persons.--Such regulations
shall require that any United States person receiving a
request for the furnishing of information, the entering into
or implementing of agreements, or the taking of any other
action referred to in section 103(9) shall report that fact
to the Secretary, together with such other information
concerning such request as the Secretary may require, for
such action as the Secretary considers appropriate for
carrying out the policies of that section. Such person shall
also report to the Secretary whether such person intends to
comply and whether such person has complied with such
request. Any report filed pursuant to this paragraph shall be
made available promptly for public inspection and copying,
except that information regarding the quantity, description,
and value of any commodities or technology to which such
report relates may be kept confidential if the Secretary
determines that disclosure thereof would place the United
States person involved at a competitive disadvantage. The
Secretary shall periodically transmit summaries of the
information contained in such reports to the Secretary of
State for such action as the Secretary of State, in
consultation with the Secretary, considers appropriate for
carrying out the policies set forth in section 103(9).
(c) Preemption.--The provisions of this section and the
regulations issued under this section shall preempt any law,
rule, or regulation which--
(1) is a law, rule, or regulation of any of the several
States or the District of Columbia, or any of the territories
or possessions of the United States, or of any governmental
subdivision thereof; and
(2) pertains to participation in, compliance with,
implementation of, or the furnishing of information regarding
restrictive trade practices or boycotts fostered or imposed
by foreign countries against other countries.
SEC. 109. PROCEDURES FOR PROCESSING EXPORT LICENSE
APPLICATIONS; OTHER INQUIRIES.
(a) Primary Responsibility of the Secretary.--
(1) In general.--All export license applications required
under this title shall be submitted by the applicant to the
Secretary. Subject to the procedures provided in this
section--
(A) if referral of an application to other departments or
agencies for review is not required, the Secretary shall,
within 9 days after receiving the application, issue a
license or notify the applicant of the intent to deny the
application; or
(B) if referral of the application to other departments or
agencies for review is required, the Secretary shall, within
30 days after referral of any such application to other
departments or agencies--
(i) issue a license;
(ii) notify the applicant of the intent to deny the
application; or
(iii) ensure that the application is subject to the
interagency resolution process set forth in subsection (d).
(2) Recommendations of other agencies.--The Secretary shall
seek information and recommendations from the Department of
Defense and other departments and agencies of the United
States that are identified by the President as being
concerned with factors having an important bearing on exports
administered under this title. Such departments and agencies
shall cooperate fully and promptly in rendering information
and recommendations.
(3) Procedures.--In guidance and regulations that implement
this section, the Secretary shall describe the procedures
required by this section, the responsibilities of the
Secretary and of other departments and agencies in reviewing
applications, the rights of the applicant, and other relevant
matters affecting the review of license applications.
(4) Calculation of processing times.--In calculating the
processing times set forth in this section, the Secretary
shall use calendar days, except that if the final day for a
required action falls on a weekend or holiday, that action
shall be taken no later than the following business day.
(5) Reliability of parties.--In reviewing applications for
export licenses, the Secretary may in each case consider the
reliability of the parties to the proposed export. In making
such an evaluation, the Secretary may consider all sources of
information, including results of other United States
Government actions, such as actions by the Committee on
Foreign Investment in the United States, investigations of
diversions from authorized end uses or end users, and
intelligence information, except that the consideration of
such information in connection with the evaluation of the
reliability of parties shall not authorize the direct or
indirect disclosure of classified information or sources and
methods of gathering classified information and shall not
confer a right on private parties to have access to
classified information.
(b) Initial Screening.--
(1) Upon receipt of application.--Upon receipt of an export
license application, the Secretary shall enter and maintain
in the records of the Department of Commerce information
regarding the receipt and status of the application.
(2) Initial procedures.--Promptly upon receiving any
license application, the Secretary shall--
(A) contact the applicant if the application is improperly
completed or if additional information is required, and hold
the application for a reasonable time while the applicant
provides the necessary corrections or information, and such
time shall not be included in calculating the time periods
prescribed in this section;
(B) refer the application, including all information
submitted by the applicant, and all necessary recommendations
and analyses by the Secretary to the Department of Defense
and other departments and agencies identified by the
President under subsection (a)(2); and
(C) ensure that the classification stated on the
application for the export items is correct, return the
application if a license is not required, and, if referral to
other departments or agencies is not required, grant the
application or notify the applicant of the Secretary's intent
to deny the application.
In the event that the head of a department or agency
determines that certain types of applications need not be
referred to the department or agency, such department or
[[Page H7572]]
agency head shall notify the Secretary of the specific types
of such applications that the department or agency does not
wish to review.
(c) Action by Other Departments and Agencies.--
(1) Referral to other agencies.--The Secretary shall
promptly refer license applications to departments and
agencies under subsection (b) to make recommendations and
provide information to the Secretary.
(2) Responsibility of referral agencies.--The Department of
Defense and other reviewing departments and agencies shall
organize their resources and units to plan for the prompt and
expeditious internal dissemination of export license
applications, if necessary, so as to avoid delays in
responding to the referral of applications.
(3) Additional information requests.--Each department or
agency to which a license application is referred shall
specify to the Secretary any information that is not in the
application that would be required for the department or
agency to make a determination with respect to the
application, and the Secretary shall promptly request such
information from the applicant. The time that may elapse
between the date the information is requested by that
department or agency and the date the information is received
by that department or agency shall not be included in
calculating the time periods prescribed in this section.
(4) Time period for action by referral departments and
agencies.--Within 30 days after receiving a referral of an
application under this section, the department or agency
concerned shall provide the Secretary with a recommendation
either to approve the license or to deny the license. A
recommendation that the Secretary deny a license shall
include a statement of reasons for the recommendation that
are consistent with the provisions of this title, and shall
cite both the specific statutory and the regulatory basis for
the recommendation. A department or agency that fails to
provide a recommendation in accordance with this paragraph
within that 30-day period shall be deemed to have no
objection to the decision of the Secretary on the
application.
(d) Interagency Resolution.--
(1) Initial resolution.--The Secretary shall establish,
select the chairperson of, and determine procedures for an
interagency committee to review initially all license
applications on which the departments and agencies reviewing
the applications under this section are not in agreement. The
chairperson of such committee shall consider the
recommendations of the departments and agencies reviewing a
particular application and inform them of his or her decision
on the application, which may include a decision that the
particular application requires further consideration under
the procedures established under paragraph (2). An
application may also be referred to further consideration
under the procedures established under paragraph (2) if an
appeal from the chairperson's decision is made in writing by
an official of the department or agency concerned who is
appointed by the President by and with the advice and consent
of the Senate, or an officer properly acting in such
capacity.
(2) Further resolution.--The President shall establish a
process for the further review and determination of export
license applications pursuant to a decision by the
chairperson under paragraph (1) or an appeal by a department
or agency under paragraph (1). Such process shall--
(A) be chaired by the Secretary or his or her designee;
(B) ensure that license applications are resolved or
referred to the President no later than 90 days after the
date the license application is initially received by the
Secretary;
(C) provide that a department or agency dissenting from the
decision reached under subparagraph (B) may appeal the
decision to the President; and
(D) provide that a department or agency that fails to take
a timely position, citing the specific statutory and
regulatory bases for a denial, shall be deemed to have no
objection to the pending decision.
(e) Actions by the Secretary if Application Denied.--In
cases where the Secretary has determined that an application
should be denied, the applicant shall be informed in writing
of--
(1) the determination to deny;
(2) the specific statutory and regulatory bases for the
proposed denial;
(3) what, if any, modifications in or restrictions on the
items for which the license was sought would allow such
export to be compatible with export controls imposed under
this title, and which officer or employee of the Department
of Commerce would be in a position to discuss modifications
or restrictions with the applicant and the specific statutory
and regulatory bases for imposing such modifications or
restrictions;
(4) to the extent consistent with the national security and
foreign policy of the United States, the specific
considerations that led to the determination to deny the
application; and
(5) the availability of appeal procedures.
The Secretary shall allow the applicant 20 days to respond to
the determination before the license application is denied.
(f) Exceptions From Required Time Periods.--The following
actions related to processing an application shall not be
included in calculating the time periods prescribed in this
section:
(1) Agreement of the applicant.--Delays upon which the
Secretary and the applicant mutually agree.
(2) Prelicense checks.--A prelicense check that may be
required to establish the identity and reliability of the
recipient of items controlled under this title, if--
(A) the need for the prelicense check is determined by the
Secretary, or by another department or agency if the request
for the prelicense check is made by such department or
agency;
(B) the request for the prelicense check is sent by the
Secretary within 5 days after the determination that the
prelicense check is required; and
(C) the analysis of the result of the prelicense check is
completed by the Secretary within 5 days.
(3) Requests for government-to-government assurances.--Any
request by the Secretary or another department or agency for
government-to-government assurances of suitable end uses of
items approved for export, when failure to obtain such
assurances would result in rejection of the application, if--
(A) the request for such assurances is sent to the
Secretary of State within 5 days after the determination that
the assurances are required;
(B) the Secretary of State initiates the request of the
relevant government within 10 days thereafter; and
(C) the license is issued within 5 days after the Secretary
receives the requested assurances.
Whenever a prelicense check described in paragraph (2) and
assurances described in this paragraph are not requested
within the time periods set forth therein, then the time
expended for such prelicense check or assurances shall be
included in calculating the time periods established by this
section.
(4) Multilateral review.--Multilateral review of a license
application to the extent that such multilateral review is
required by a relevant multilateral regime.
(5) Congressional notification.--Such time as is required
for mandatory congressional notifications under this title.
(6) Consultations.--Consultation with other governments, if
such consultation is provided for by a relevant multilateral
regime as a precondition for approving a license.
(g) Appeals.--
(1) In general.--The Secretary shall establish appropriate
procedures for any applicant to appeal to the Secretary the
denial of an export license application or other
administrative action under this title.
(2) Filing of petition.--In any case in which any action
prescribed in this section is not taken on a license
application within the time periods established by this
section (except in the case of a time period extended under
subsection (f) of which the applicant is notified), the
applicant may file a petition with the Secretary requesting
compliance with the requirements of this section. When such
petition is filed, the Secretary shall take immediate steps
to correct the situation giving rise to the petition and
shall immediately notify the applicant of such steps.
(3) Bringing court action.--If, within 20 days after a
petition is filed under paragraph (2), the processing of the
application has not been brought into conformity with the
requirements of this section, or the application has been
brought into conformity with such requirements but the
Secretary has not so notified the applicant, the applicant
may bring an action in an appropriate United States district
court for an order requiring compliance with the time periods
required by this section. The United States district courts
shall have jurisdiction to provide such relief, as
appropriate.
(h) Classification Requests and Other Inquiries.--
(1) Classification requests.--In any case in which the
Secretary receives a written request asking for the proper
classification of an item on the control index, the Secretary
shall, within 14 days after receiving the request, inform the
person making the request of the proper classification.
(2) Other inquiries.--In any case in which the Secretary
receives a written request for information about the
applicability of licensing requirements under this title to a
proposed export transaction or series of transactions, the
Secretary shall, within 30 days after receiving the request,
reply with that information to the person making the request.
SEC. 110. VIOLATIONS.
(a) Criminal Penalties.--
(1) Violations by an individual.--Except as provided in
paragraph (3), any individual who knowingly violates or
conspires to or attempts to violate any provision of this
title or any regulation, license, or order issued under this
title shall be fined not more than 5 times the value of the
exports involved or $500,000, whichever is greater, or
imprisoned not more than 10 years, or both.
(2) Violations by a person other than an individual.--
Except as provided in paragraph (3), any person other than an
individual who knowingly violates or conspires to or attempts
to violate any provision of this title or any regulation,
license, or order issued under this title shall be fined not
more than 10 times the value of the exports involved or
$1,000,000, whichever is greater.
(3) Antiboycott violations.--
(A) Any individual who knowingly violates or conspires to
or attempts to violate any regulation or order issued under
section 108
[[Page H7573]]
shall be fined, for each violation, not more than 5 times the
value of the exports involved or $250,000, whichever is
greater, or imprisoned not more than 10 years, or both.
(B) Any person other than an individual who knowingly
violates or conspires to or attempts to violate any
regulation or order issued under section 108 shall be fined,
for each violation, not more than 5 times the value of the
exports involved or $500,000, whichever is greater.
(b) Forfeiture of Property Interest and Proceeds.--
(1) Forfeiture.--Any person who is convicted under
subsection (a)(1) or (2) shall, in addition to any other
penalty, forfeit to the United States--
(A) any of that person's interest in, security of, claim
against, or property or contractual rights of any kind in the
commodities or tangible items that were the subject of the
violation;
(B) any of that person's interest in, security of, claim
against, or property or contractual rights of any kind in
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, to the same extent as
property subject to forfeiture under that chapter.
(c) Civil Penalties; Administrative Sanctions.--
(1) Civil penalties.--The Secretary may impose a civil
penalty of not more than $250,000 for each violation of this
title or any regulation, license, or order issued under this
title, either in addition to or in lieu of any other
liability or penalty which may be imposed, except that the
civil penalty for each such violation of regulations issued
under section 108 may not exceed $50,000.
(2) Denial of export privileges.--The Secretary may deny
the export privileges of any person, including suspending or
revoking the authority of any person to export or receive
United States-origin commodities or technology subject to
this title, on account of any violation of this title or any
regulation, license, or order issued under this title.
(d) Payment of Civil Penalties.--The payment of any civil
penalty imposed under subsection (c) may be made a condition,
for a period not exceeding 1 year after the penalty has
become due but has not been paid, to the granting,
restoration, or continuing validity of any export license,
permission, or privilege granted or to be granted to the
person upon whom such penalty is imposed. In addition, the
payment of any civil penalty imposed under subsection (c) may
be deferred or suspended in whole or in part for a period of
time no longer than any probation period (which may exceed 1
year) that may be imposed upon such person. Such deferral or
suspension shall not operate as a bar to the collection of
the penalty in the event that the conditions of the
suspension, deferral, or probation are not fulfilled.
(e) Refunds.--Any amount paid in satisfaction of any civil
penalty imposed under subsection (c) shall be covered into
the Treasury as a miscellaneous receipt. The head of the
department or agency concerned may, in his or her discretion,
refund any such civil penalty imposed under subsection (c),
within 2 years after payment, on the ground of a material
error of fact or law in the imposition of the penalty.
Notwithstanding section 1346(a) of title 28, United States
Code, no action for the refund of any such penalty may be
maintained in any court.
(f) Effect of Other Convictions.--
(1) Denial of export privileges.--Any person convicted of a
violation of--
(A) this title or the Export Administration Act of 1979,
(B) the International Emergency Economic Powers Act,
(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,
(F) section 16 of the Trading with the Enemy Act (59 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), or
(H) section 371 or 1001 of title 18, United States Code, if
in connection with the export of commodities or technology
controlled under this title, any regulation, license or order
issued under the International Emergency Economic Powers Act,
or defense articles or defense services controlled under the
Arms Export Control Act,
may, at the discretion of the Secretary, be denied export
privileges under this title for a period of up to 10 years
from the date of the conviction. The Secretary may also
revoke any export license under this title in which such
person had an interest at the time of the conviction.
(2) 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 any person convicted of any violation
of a law set forth in paragraph (1), upon a showing of such
relationship with the convicted person, after providing
notice and opportunity for a hearing.
(g) Statute of Limitations.--Any proceeding in which a
civil penalty or other administrative sanction (other than a
temporary denial order) is sought under subsection (c) may
not be instituted more than 5 years after the date of the
alleged violation, except that, in any case in which a
criminal indictment alleging a violation of this title is
returned within the time limits prescribed by law for the
institution of such action, the statute of limitations for
bringing a proceeding to impose such a civil penalty or other
administrative sanction under this title shall, upon the
return of the criminal indictment, be tolled against all
persons named as a defendant. The tolling of the statute of
limitations shall continue for a period of 6 months from the
date a conviction becomes final or the indictment is
dismissed.
(h) Violations Defined by Regulation.--Nothing in this
section shall limit the power of the Secretary to define by
regulation violations under this title.
(i) Other Authorities.--Nothing in subsection (c), (d),
(e), (f), or (g) limits--
(1) the availability of other administrative or judicial
remedies with respect to violations of this title, or any
regulation, order, or license issued under this title;
(2) the authority to compromise and settle administrative
proceedings brought with respect to any such violation; or
(3) the authority to compromise, remit, or mitigate
seizures and forfeitures pursuant to section 1(b) of title VI
of the Act of June 15, 1917 (22 U.S.C. 401(b)).
(j) Private Right of Action.--Any person--
(1) against whom an act of discrimination described in
section 108(a)(1)(B) is committed, or
(2) who, on account of a violation of the regulations
issued pursuant to section 108(a), loses an opportunity to
engage in a commercial venture pursuant to a contract, joint
venture, or other commercial transaction, including an
opportunity to bid or tender an offer for a contract,
may bring an action in an appropriate district court of the
United States against the United States person committing the
violation, for recovery of actual damages incurred on account
of such act of discrimination or lost opportunity. In any
such action the court may award punitive damages. An action
may be brought under this subsection against a United States
person whether or not the United States person has been
determined under this section to have violated the
regulations issued pursuant to section 108(a) on account of
which the action is brought. In an action brought under this
subsection, unless the court finds that the interests of
justice require otherwise, the court shall designate the
substantially prevailing party or parties in the action, and
the remaining parties shall pay the reasonable attorneys'
fees of the substantially prevailing party or parties in such
proportion as the court shall determine.
SEC. 111. CONTROLLING PROLIFERATION ACTIVITY.
(a) Proliferation Controls.--
(1) Missile technology controls.--The Secretary, in
consultation with the Secretary of De fense and the heads of
other appropriate departments and agencies and consistent
with sections 103 and 104(g)--
(A) shall establish and maintain, as part of the control
index established under section 104(b), dual-use items on the
MTCR Annex;
(B) may include, as part of the control index established
under section 104(b), items that--
(i) would make a material contribution to the design,
development, test, production, stockpiling, or use of missile
delivery systems, and
(ii) are not included in the MTCR Annex but which the
United States has proposed to the other members of the MTCR
for inclusion in the MTCR Annex; and
(C) shall require a license under paragraph (1) or (2) of
section 104(a), consistent with the arrangements of the MTCR,
for--
(i) any export of items on the control index pursuant to
subparagraphs (A) and (B) to any country; and
(ii) any export of items that the exporter knows is
destined for a project or facility for the design,
development, or manufacture of a missile in a country that is
not an adherent to the MTCR.
(2) Chemical and biological weapons controls.--The
Secretary, in consultation with the Secretary of Defense and
the heads of other appropriate departments and agencies and
consistent with sections 103 and 104(g)--
(A) shall establish and maintain, as part of the control
index established under section 104(b), dual-use items listed
by the Australia Group or the Chemical Weapons Convention;
(B) may include, as part of the control index established
under section 104(b), items that--
(i) would make a material contribution to the design,
development, test, production, stockpiling, or use of
chemical or biological weapons, and
(ii) are not contained on the list of controlled items of
the Australia Group but which the United States has proposed
to the other members of the Australia Group for inclusion in
such list; and
(C) shall require a license under paragraph (1) or (2) of
section 104(a), consistent with the
[[Page H7574]]
arrangements of the Australia Group and the Chemical Weapons
Convention, for--
(i) any export of items on the control index pursuant to
subparagraphs (A) and (B) to any country, except as provided
for in section 105(e); and
(ii) any export of items that the exporter knows is
destined for a project or facility for the design,
development, or manufacture of a chemical or biological
weapon.
(3) Policy of denial of licenses.--(A) Licenses under
paragraph (1)(C) should in general be denied if the ultimate
consignee of the commodities or technology is a facility in a
country that is not an adherent to the MTCR and the facility
is designed to develop or build missiles.
(B) Licenses under paragraph (1)(C) shall be denied if the
ultimate consignee of the commodities or technology is a
facility in a country the government of which has been
determined under section 106(i)(1) to have repeatedly
provided support for acts of international terrorism.
(b) Technical Amendments to Arms Export Control Act.--(1)
Section 71(a) of the Arms Export Control Act (22 U.S.C.
2797(a)) is amended by striking ``6(l) of the Export
Administration Act of 1979'' and inserting ``111(a) of the
Export Administration Act of 1996''.
(2) Section 81(a)(1) of the Arms Export Control Act (22
U.S.C. 2798(a)(1)) is amended in subparagraphs (A) and (B) by
inserting ``under this Act'' after ``United States'' the
second place it appears in each subparagraph.
(c) General Prohibition.--Notwithstanding any other
provision of this title, the export of commodities or
technology shall be prohibited if the ultimate consignee is a
program or activity for the design, development, manufacture,
stockpiling, testing, or other acquisition of a weapon of
mass destruction or missile in a country that is not an
adherent to the regime controlling such weapon or missile,
unless the Secretary determines such export would not make a
material contribution to such program or activity.
(d) Chemical and Biological Weapons Proliferation
Sanctions.--
(1) Imposition of sanctions.--
(A) Determination by the president.--Except as provided in
paragraph (2)(B), the President shall impose both of the
sanctions described in paragraph (3) if the President
determines that a foreign person, on or after the date of the
enactment of this Act, has knowingly and materially
contributed--
(i) through the export from the United States of any goods
or technology that are subject to the jurisdiction of the
United States under this title, or
(ii) through the export from any other country of any goods
or technology that would be, if they were United States goods
or technology, subject to the jurisdiction of the United
States under this title,
to the efforts by any foreign country, project, or entity
described in subparagraph (B) to use, develop, produce,
stockpile, or otherwise acquire chemical or biological
weapons.
(B) Countries, projects, or entities receiving
assistance.--Subparagraph (A) applies in the case of--
(i) any foreign country that the President determines has,
at any time after January 1, 1980--
(I) used chemical or biological weapons in violation of
international law;
(II) used lethal chemical or biological weapons against its
own nationals; or
(III) made substantial preparations to engage in the
activities described in subclause (I) or (II);
(ii) any foreign country whose government is determined for
purposes of section 106(i) to be a government that has
repeatedly provided support for acts of international
terrorism; or
(iii) any other foreign country, project, or entity
designated by the President for purposes of this subsection.
(C) Persons against which sanctions are to be imposed.--
Sanctions shall be imposed pursuant to subparagraph (A) on--
(i) the foreign person with respect to which the President
makes the determination described in that subparagraph;
(ii) any successor entity to that foreign person;
(iii) any foreign person that is a parent or subsidiary of
that foreign person if that parent or subsidiary knowingly
assisted in the activities which were the basis of that
determination; and
(iv) any foreign person that is an affiliate of that
foreign person if that affiliate knowingly assisted in the
activities which were the basis of that determination and if
that affiliate is controlled in fact by that foreign person.
(2) Consultations with and actions by foreign government of
jurisdiction.--
(A) Consultations.--If the President makes the
determinations described in paragraph (1)(A) with respect to
a foreign person, the Congress urges the President to
initiate consultations immediately with the government with
primary jurisdiction over that foreign person with respect to
the imposition of sanctions pursuant to this subsection.
(B) Actions by government of jurisdiction.--In order to
pursue such consultations with that government, the President
may delay imposition of sanctions pursuant to this subsection
for a period of up to 90 days. Following these consultations,
the President shall impose sanctions unless the President
determines and certifies to the Congress that that government
has taken specific and effective actions, including
appropriate penalties, to terminate the involvement of the
foreign person in the activities described in paragraph
(1)(A). The President may delay imposition of sanctions for
an additional period of up to 90 days if the President
determines and certifies to the Congress that that government
is in the process of taking the actions described in the
preceding sentence.
(C) Report to congress.--The President shall report to the
Congress, not later than 90 days after making a determination
under paragraph (1)(A), on the status of consultations with
the appropriate government under this subsection, and the
basis for any determination under subparagraph (B) of this
paragraph that such government has taken specific corrective
actions.
(3) Sanctions.--
(A) Description of sanctions.--The sanctions to be imposed
pursuant to paragraph (1)(A) are, except as provided in
subparagraph (B) of this paragraph, the following:
(i) Procurement sanction.--The United States Government
shall not procure, or enter into any contract for the
procurement of, any goods or services from any person
described in paragraph (1)(C).
(ii) Import sanctions.--The importation into the United
States of products produced by any person described in
paragraph (1)(C) shall be prohibited.
(B) Exceptions.--The President shall not be required to
apply or maintain sanctions under this subsection--
(i) in the case of procurement of defense articles or
defense services--
(I) under existing contracts or subcontracts, including the
exercise of options for production quantities to satisfy
United States operational military requirements;
(II) if the President determines that the person or other
entity to which the sanctions would otherwise be applied is a
sole source supplier of the defense articles or services,
that the defense articles or services are essential, and that
alternative sources are not readily or reasonably available;
or
(III) if the President determines that such articles or
services are essential to the national security under defense
coproduction agreements;
(ii) to products or services provided under contracts
entered into before the date on which the President publishes
his intention to impose sanctions;
(iii) to--
(I) spare parts,
(II) component parts, but not finished products, essential
to United States products or production, or
(III) routine servicing and maintenance of products, to the
extent that alternative sources are not readily or reasonably
available;
(iv) to information and technology essential to United
States products or production; or
(v) to medical or other humanitarian items.
(4) Termination of sanctions.--The sanctions imposed
pursuant to this subsection shall apply for a period of at
least 12 months following the imposition of sanctions and
shall cease to apply thereafter only if the President
determines and certifies to the Congress that reliable
information indicates that the foreign person with respect to
which the determination was made under paragraph (1)(A) has
ceased to aid or abet any foreign government, project, or
entity in its efforts to acquire chemical or biological
weapons capability as described in that paragraph.
(5) Waiver.--
(A) Criterion for waiver.--The President may waive the
application of any sanction imposed on any person pursuant to
this subsection, after the end of the 12-month period
beginning on the date on which that sanction was imposed on
that person, if the President determines and certifies to the
Congress that such waiver is important to the national
security interests of the United States.
(B) Notification of and report to congress.--If the
President decides to exercise the waiver authority provided
in subparagraph (A), the President shall so notify the
Congress not less than 20 days before the waiver takes
effect. Such notification shall include a report fully
articulating the rationale and circumstances which led the
President to exercise the waiver authority.
(6) Definition of foreign person.--For purposes of this
subsection, the term ``foreign person'' means--
(A) an individual who is not a citizen of the United States
or an alien lawfully admitted for permanent residence to the
United States; or
(B) a corporation, partnership, or other entity which is
created or organized under the laws of a foreign country or
which has its principal place of business outside the United
States.
(e) Missile Proliferation Control Violations.--
(1) Violations by united states persons.--
(A) Sanctions.--(i) If the President determines that a
United States person knowingly--
(I) exports, transfers, or otherwise engages in the trade
of any item on the MTCR Annex, in violation of the provisions
of section 38 (22 U.S.C. 2778) or chapter 7 of the Arms
Export Control Act, this title, or any regulations or orders
issued under any such provisions,
(II) conspires to or attempts to engage in such export,
transfer, or trade, or
[[Page H7575]]
(III) facilitates such export, transfer, or trade by any
other person,
then the President shall impose the applicable sanctions
described in clause (ii).
(ii) The sanctions which apply to a United States person
under clause (i) are the following:
(I) If the item on the MTCR Annex involved in the export,
transfer, or trade is missile equipment or technology within
category II of the MTCR Annex, then the President shall deny
to such United States person, for a period of 2 years,
licenses for the transfer of missile equipment or technology
controlled under this title.
(II) If the item on the MTCR Annex involved in the export,
transfer, or trade is missile equipment or technology within
category I of the MTCR Annex, then the President shall deny
to such United States person, for a period of not less than 2
years, all licenses for items the export of which is
controlled under this title.
(B) Discretionary sanctions.--In the case of any
determination referred to in subparagraph (A), the Secretary
may pursue any other appropriate penalties under section 110.
(C) Waiver.--The President may waive the imposition of
sanctions under subparagraph (A) on a person with respect to
a product or service if the President certifies to the
Congress that--
(i) the product or service is essential to the national
security of the United States; and
(ii) such person is a sole source supplier of the product
or service, the product or service is not available from any
alternative reliable supplier, and the need for the product
or service cannot be met in a timely manner by improved
manufacturing processes or technological developments.
(2) Transfers of missile equipment or technology by foreign
persons.--
(A) Sanctions.--(i) Subject to subparagraphs (C) through
(G), if the President determines that a foreign person, after
the date of the enactment of this section, knowingly--
(I) exports, transfers, or otherwise engages in the trade
of any MTCR equipment or technology that contributes to the
design, development, or production of missiles in a country
that is not an adherent to the MTCR and would be, if it were
United States-origin equipment or technology, subject to the
jurisdiction of the United States under this title,
(II) conspires to or attempts to engage in such export,
transfer, or trade, or
(III) facilitates such export, transfer, or trade by any
other person,
or if the President has made a determination with respect to
a foreign person, under section 73(a) of the Arms Export
Control Act, then the President shall impose on that foreign
person the applicable sanctions under clause (ii).
(ii) The sanctions which apply to a foreign person under
clause (i) are the following:
(I) If the item involved in the export, transfer, or trade
is within category II of the MTCR Annex, then the President
shall deny, for a period of 2 years, licenses for the
transfer to such foreign person of missile equipment or
technology the export of which is controlled under this
title.
(II) If the item involved in the export, transfer, or trade
is within category I of the MTCR Annex, then the President
shall deny, for a period of not less than 2 years, licenses
for the transfer to such foreign person of items the export
of which is controlled under this title.
(III) If, in addition to actions taken under subclauses (I)
and (II), the President determines that the export, transfer,
or trade has substantially contributed to the design,
development, or production of missiles in a country that is
not an adherent to the MTCR, then the President shall
prohibit, for a period of not less than 2 years, the
importation into the United States of products produced by
that foreign person.
(B) Inapplicability with respect to mtcr adherents.--
Subparagraph (A) does not apply with respect to--
(i) any export, transfer, or trading activity that is
authorized by the laws of an adherent to the MTCR, if such
authorization is not obtained by misrepresentation or fraud;
or
(ii) any export, transfer, or trade of an item to an end
user in a country that is an adherent to the MTCR.
(C) Effect of enforcement actions by mtcr adherents.--
Sanctions set forth in subparagraph (A) may not be imposed
under this paragraph on a person with respect to acts
described in such subparagraph or, if such sanctions are in
effect against a person on account of such acts, such
sanctions shall be terminated, if an adherent to the MTCR is
taking judicial or other enforcement against that person with
respect to such acts, or that person has been found by the
government of an adherent to the MTCR to be innocent of
wrongdoing with respect to such acts.
(D) Advisory opinions.--The Secretary, in consultation with
the Secretary of State and the Secretary of Defense, may,
upon the request of any person, issue an advisory opinion to
that person as to whether a proposed activity by that person
would subject that person to sanctions under this paragraph.
Any person who relies in good faith on such an advisory
opinion which states that the proposed activity would not
subject a person to such sanctions, and any person who
thereafter engages in such activity, may not be made subject
to such sanctions on account of such activity.
(E) Waiver and report to congress.--(i) In any case other
than one in which an advisory opinion has been issued under
subparagraph (D) stating that a proposed activity would not
subject a person to sanctions under this paragraph, the
President may waive the application of subparagraph (A) to a
foreign person if the President determines that such waiver
is essential to the national security of the United States.
(ii) In the event that the President decides to apply the
waiver described in clause (i), the President shall so notify
the Congress not less than 20 working days before issuing the
waiver. Such notification shall include a report fully
articulating the rationale and circumstances which led the
President to apply the waiver.
(F) Additional waiver.--The President may waive the
imposition of sanctions under subparagraph (A) on a person
with respect to a product or service if the President
certifies to the Congress that--
(i) the product or service is essential to the national
security of the United States; and
(ii) such person is a sole source supplier of the product
or service, the product or service is not available from any
alternative reliable supplier, and the need for the product
or service cannot be met in a timely manner by improved
manufacturing processes or technological developments.
(G) Exceptions from import sanctions.--The President shall
not apply the sanction under this subsection prohibiting the
importation of the products of a foreign person--
(i) in the case of procurement of defense articles or
defense services--
(I) under existing contracts or subcontracts, including the
exercise of options for production quantities to satisfy
requirements essential to the national security of the United
States;
(II) if the President determines that the person to which
the sanctions would be applied is a sole source supplier of
the defense articles and services, that the defense articles
or services are essential to the national security of the
United States, and that alternative sources are not readily
or reasonably available; or
(III) if the President determines that such articles or
services are essential to the national security of the United
States under defense coproduction agreements;
(ii) to products or services provided under contracts
entered into before the date on which the President publishes
his intention to impose the sanctions; or
(iii) to--
(I) spare parts,
(II) component parts, but not finished products, essential
to United States products or production,
(III) routine services and maintenance of products, to the
extent that alternative sources are not readily or reasonably
available, or
(IV) information and technology essential to United States
products or production.
(3) Definitions.--For purposes of this subsection--
(A) the terms ``missile equipment or technology'' and
``MTCR equipment or technology'' mean those items listed in
category I or category II of the MTCR Annex;
(B) the term ``foreign person'' means any person other than
a United States person;
(C)(i) the term ``person'' means a natural person as well
as a corporation, business association, partnership, society,
trust, any other nongovernmental entity, organization, or
group, and any governmental entity operating as a business
enterprise, and any successor of any such entity; and
(ii) in the case of a country where it may be impossible to
identify a specific governmental entity referred to in clause
(i), the term ``person'' means--
(I) all activities of that government relating to the
development or production of any missile equipment or
technology; and
(II) all activities of that government affecting the
development or production of aircraft, electronics, and space
systems or equipment; and
(D) the term ``otherwise engaged in the trade of'' means,
with respect to a particular export or transfer, to be a
freight forwarder or designated exporting agent, or a
consignee or end user of the item to be exported or
transferred.
(f) Effect on Other Laws.--The provisions of this section
do not affect any activities subject to the reporting
requirements contained in title V of the National Security
Act of 1947.
(g) Seeking Multilateral Support for Unilateral
Sanctions.--The Secretary of State, in consultation with
appropriate departments and agencies, shall seek the support
of other countries for sanctions imposed under this section.
SEC. 112. ADMINISTRATIVE AND JUDICIAL REVIEW.
(a) Applicability.--
(1) Exemptions from administrative procedure.--Except as
provided in this section, the functions exercised under this
title are excluded from the operation of sections 551, 553
through 559, and 701 through 706 of title 5, United States
Code.
(2) Judicial review.--Except as otherwise provided in this
section, a final agency action under this title may be
reviewed by appeal to the United States Court of Appeals for
the District of Columbia Circuit, to the extent provided in
this paragraph. The court's review in any such appeal shall
be limited to determining whether--
(A) a regulation--
[[Page H7576]]
(i) fails to take an action required by this title;
(ii) takes an action prohibited by this title; or
(iii) otherwise violates this title;
(B) an agency action violates this title;
(C) an agency action violates an agency regulation
establishing time requirements or other procedural
requirements of a non-discretionary nature;
(D) the issuance of regulations required by this title
complies with time restrictions imposed by this title;
(E) license decisions are made and appeals thereof are
concluded in compliance with time restrictions imposed by
this title;
(F) classifications and advisory opinions are issued in
compliance with time restrictions imposed by this title;
(G) unfair impact determinations under section 114(k) are
in compliance with time restrictions imposed by that section;
or
(H) the United States has complied with the requirements of
section 114(k) after an unfair impact determination has been
made.
(b) Procedures Relating to Civil Penalties and Sanctions.--
(1) Administrative procedures.--Any administrative sanction
imposed under section 110(c) may be imposed only after notice
and opportunity for an agency hearing on the record in
accordance with sections 554 through 557 of title 5, United
States Code. The imposition of any such administrative
sanction shall be subject to judicial review in accordance
with sections 701 through 706 of title 5, United States Code.
(2) Availability of charging letter.--Any charging letter
or other document initiating administrative proceedings for
the imposition of sanctions for violations of the regulations
issued under section 108(a) shall be made available for
public inspection and copying.
(c) Collection.--If any person fails to pay a civil penalty
imposed under section 110(c), the Secretary may ask the
Attorney General to bring a civil action in an appropriate
district court to recover the amount imposed (plus interest
at currently prevailing rates from the date of the final
order). No such action may be commenced more than 5 years
after the order imposing the civil penalty becomes final. In
such an action, the validity, amount, and appropriateness of
such penalty shall not be subject to review.
(d) Imposition of Temporary Denial Orders.--
(1) Grounds for imposition.--In any case in which there is
reasonable cause to believe that a person is engaged in or is
about to engage in any act or practice which constitutes or
would constitute a violation of this title, or any
regulation, order, or license issued under this title,
including any diversion of goods or technology from an
authorized end use or end user, or in any case in which a
criminal indictment has been returned against a person
alleging a violation of this title or any of the statutes
listed in section 110(f), the Secretary may, without a
hearing, issue an order temporarily denying that person's
United States export privileges (hereafter in this subsection
referred to a ``temporary denial order''). A temporary denial
order may be effective for no longer than 180 days, but may
be renewed by the Secretary, following notice and an
opportunity for a hearing, for additional periods of not more
than 180 days each.
(2) Administrative appeals.--The person or persons subject
to the issuance or renewal of a temporary denial order may
appeal the issuance or renewal of the temporary denial order,
supported by briefs and other material, to an administrative
law judge who shall, within 15 working days after the appeal
is filed, issue a decision affirming, modifying, or vacating
the temporary denial order. The temporary denial order shall
be affirmed if it is shown that--
(A) there is reasonable cause to believe that the person
subject to the order is engaged in or is about to engage in
any act or practice which constitutes or would constitute a
violation of this title, or any regulation, order, or license
issued under this title, or
(B) a criminal indictment has been returned against the
person subject to the order alleging a violation of this
title or any of the statutes listed in section 110(f).
The decision of the administrative law judge shall be final
unless, within 10 working days after the date of the
administrative law judge's decision, an appeal is filed with
the Secretary. On appeal, the Secretary shall either affirm,
modify, reverse, or vacate the decision of the administrative
law judge by written order within 10 working days after
receiving the appeal. The written order of the Secretary
shall be final and is not subject to judicial review, except
as provided in paragraph (3). The materials submitted to the
administrative law judge and the Secretary shall constitute
the administrative record for purposes of review by the
court.
(3) Court appeals.--An order of the Secretary affirming, in
whole or in part, the issuance or renewal of a temporary
denial order may, within 15 days after the order is issued,
be appealed by a person subject to the order to the United
States Court of Appeals for the District of Columbia Circuit,
which shall have jurisdiction of the appeal. The court may
review only those issues necessary to determine whether the
issuance of the temporary denial order was based on
reasonable cause to believe that the person subject to the
order was engaged in or was about to engage in any act or
practice which constitutes or would constitute a violation of
this title, or any regulation, order, or license issued under
this title, or if a criminal indictment has been returned
against the person subject to the order alleging a violation
of this title or any of the statutes listed in section
110(f). The court shall vacate the Secretary's order if the
court finds that the Secretary's order is arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.
SEC. 113. ENFORCEMENT.
(a) General Authority and Designation.--
(1) Policy guidance on enforcement.--The Secretary, in
consultation with the Secretary of the Treasury and the heads
of other appropriate departments and agencies, shall be
responsible for providing policy guidance on the enforcement
of this title.
(2) General authorities.--(A) To the extent necessary or
appropriate to the enforcement of this title or to the
imposition of any penalty, forfeiture, or liability arising
under the Export Administration Act of 1979, officers or
employees of the Department of Commerce designated by the
Secretary and officers and employees of the United States
Customs Service designated by the Commissioner may exercise
the enforcement authorities described in paragraph (3).
(B) In carrying out the enforcement authorities described
in paragraph (3), the Commissioner of Customs, and employees
of the United States Customs Service designated by the
Commissioner, may make investigations within or outside the
United States and at those ports of entry or exit from the
United States where officers of the United States Customs
Service are authorized by law to carry out such enforcement
responsibilities. Subject to paragraph (3), the United States
Customs Service is authorized, in the enforcement of this
title, to search, detain (after search), and seize
commodities or technology at those ports of entry or exit
from the United States where officers of the Customs Service
are authorized by law to conduct such searches, detentions,
and seizures, and at those places outside the United States
where the Customs Service, pursuant to agreements or other
arrangements with other countries, is authorized to perform
enforcement activities.
(C) In carrying out the enforcement authorities described
in paragraph (3), the Secretary, and officers and employees
of the Department of Commerce designated by the Secretary,
may make investigations within the United States, and shall
conduct, outside the United States, prelicense and
postshipment verifications of items licensed for export and
investigations in the enforcement of section 108. The
Secretary, and officers and employees of the Department of
Commerce designated by the Secretary, are authorized to
search, detain (after search), and seize items at those
places within the United States other than those ports
specified in subparagraph (B). The search, detention (after
search), or seizure of items at those ports and places
specified in subparagraph (B) may be conducted by officers
and employees of the Department of Commerce only with the
concurrence of the Commissioner of Customs or a person
designated by the Commissioner.
(D) The Secretary and the Commissioner of Customs may enter
into agreements and arrangements for the enforcement of this
title, including foreign investigations and information
exchange.
(3) Specific authorities.--(A) Any officer or employee
designated under paragraph (2) may do the following in
carrying out the enforcement authority under this title:
(i) Make investigations of, obtain information from, make
inspection of any books, records, or reports (including any
writings required to be kept by the Secretary), premises, or
property of, and take the sworn testimony of, any person.
(ii) Administer oaths or affirmations, and by subpoena
require any person to appear and testify or to appear and
produce books, records, and other writings, or both. In the
case of contumacy by, or refusal to obey a subpoena issued
to, any such person, a district court of the United States,
on request of the Attorney General and after notice to any
such person and a 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. Any failure to obey such order of the court may be
punished by such court as a contempt thereof. The attendance
of witnesses and the production of documents provided for in
this clause may be required from any State, the District of
Columbia, or in any territory of the United States at any
designated place. Witnesses subpoenaed under this subsection
shall be paid the same fees and mileage as are paid witnesses
in the district courts of the United States.
(B)(i) Any officer or employee of the Office of Export
Enforcement of the Department of Commerce who is designated
by the Secretary under paragraph (2), and any officer or
employee of the United States Customs Service who is
designated by the Commissioner of Customs under paragraph
(2), may do the following in carrying out the enforcement
authority under this title:
(I) Execute any warrant or other process issued by a court
or officer of competent jurisdiction with respect to the
enforcement of this title.
(II) Make arrests without warrant for any violation of this
title committed in his or
[[Page H7577]]
her presence or view, or if the officer or employee has
probable cause to believe that the person to be arrested has
committed, is committing, or is about to commit such a
violation.
(III) Carry firearms.
(ii) Officers and employees of the Office of Export
Enforcement designated by the Secretary under paragraph (2)
shall exercise the authorities set forth in clause (i)
pursuant to guidelines approved by the Attorney General.
(C) Any officer or employee of the United States Customs
Service designated by the Commissioner of Customs under
paragraph (2) may do the following in carrying out the
enforcement authority under this title:
(i) Stop, search, and examine a vehicle, vessel, aircraft,
or person on which or whom the officer or employee has
reasonable cause to suspect there is any item that has been,
is being, or is about to be exported from or transited
through the United States in violation of this title.
(ii) Detain and search any package or container in which
the officer or employee has reasonable cause to suspect there
is any item that has been, is being, or is about to be
exported from or transited through the United States in
violation of this title.
(iii) Detain (after search) or seize any item, for purposes
of securing for trial or forfeiture to the United States, on
or about such vehicle, vessel, aircraft, or person or in such
package or container, if the officer or employee has probable
cause to believe the item has been, is being, or is about to
be exported from or transited through the United States in
violation of this title.
(4) Other authorities not affected.--The authorities
conferred by this section are in addition to any authorities
conferred under other laws.
(b) Forfeiture.--Any commodities or tangible items lawfully
seized under subsection (a) by designated officers or
employees shall be subject to forfeiture to the United
States. Those provisions of law relating to--
(1) the seizure, summary and judicial forfeiture, and
condemnation of property for violations of the customs laws,
(2) the disposition of such property or the proceeds from
the sale thereof,
(3) the remission or mitigation of such forfeitures, and
(4) 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 title; except that such duties as are imposed upon the
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 such
officers and employees of the Department of Commerce as may
be authorized or designated for that purpose by the
Secretary, or, upon the request of the Secretary, by any
other agency that has authority to manage and dispose of
seized property.
(c) Referral of Cases.--All cases involving violations of
this title shall be referred to the Secretary for purposes of
determining civil penalties and administrative sanctions
under section 110(c), or to the Attorney General for criminal
action in accordance with this title or to both the Secretary
and the Attorney General.
(d) 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 (hereafter in this
subsection referred to as ``OEE'') necessary for the
detection and prosecution of violations of this title--
(A) funds made available for export enforcement under this
title may be used to purchase property, buildings, and other
facilities, and to lease space within the United States,
without regard to sections 1341 and 3324 of title 31, United
States Code, the third undesignated paragraph under the
heading of ``miscellaneous'' of the Act of March 3, 1877, (40
U.S.C. 34), sections 3732(a) and 3741 of the Revised Statutes
of the United States (41 U.S.C. 11(a) and 22), and
subsections (a) and (c) of section 304, and section 305 of
the Federal Property and Administrative Services Act of 1949
(41 U.S.C. 254(a) and (c) and 255),
(B) funds made available for export enforcement under this
title 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 section
9102 of title 31, United States Code,
(C) funds made available for export enforcement under this
title 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 Director of OEE (or an officer or employee designated
by the Director) 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 with a net value of more than $50,000 is
to be liquidated, sold, or otherwise disposed of, the
Director of OEE shall report the circumstances to the
Secretary and the Comptroller General, as much in advance of
such disposition as the Director of OEE or his or her
designee 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.
(3) Deposit of proceeds.--As soon as the proceeds from an
OEE undercover investigative operation with respect to which
an action is authorized and carried out under this subsection
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 into the Treasury of the United
States as miscellaneous receipts.
(4) Audit and report.--(A) The Director of OEE shall
conduct a detailed financial audit of each OEE undercover
investigative operation which is closed and shall submit the
results of the audit in writing to the Secretary. 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) The Secretary shall submit annually to the Congress a
report, which may be included in the annual report under
section 115, specifying the following information:
(i) The number of undercover investigative operations
pending as of the end of the period for which such report is
submitted.
(ii) The number of undercover investigative operations
commenced in the 1-year period preceding the period for which
such 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 thereto.
(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;
(B) the terms ``undercover investigative operation'' and
``undercover operation'' mean any undercover investigative
operation conducted by OEE--
(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 subparagraph (B) of
paragraph (4); and
(C) the term ``employees'' means employees, as defined in
section 2105 of title 5, United States Code, of the
Department of Commerce.
(e) Reference to Enforcement.--For purposes of this
section, a reference to the enforcement of this title or to a
violation of this title includes a reference to the
enforcement or a violation of any regulation, license, or
order issued under this title.
SEC. 114. EXPORT CONTROL AUTHORITIES AND PROCEDURES.
(a) Policy Guidance.--
(1) In general.--As directed by the President, annual
policy guidance shall be issued to provide detailed
implementing guidance to export licensing officials in all
appropriate departments and agencies.
(2) Elements of annual policy review.--In order to develop
such annual policy guidance, export controls and other
regulations to implement this title shall be reviewed
annually. This annual policy review shall include an
evaluation of the benefits and costs of the imposition,
extension, or removal of controls under this title. This
review shall include--
(A) an assessment by the Secretary of the economic
consequences of the imposition, extension, or removal of
controls during the preceding 12 months, including the impact
on United States exports or jobs;
(B) an assessment by the Secretary of State of the
objectives of the controls in effect during the preceding 12
months, and the extent to which the controls have served
those objectives; and
(C) an assessment by the Secretary of Defense of the impact
that the imposition, extension, or removal of controls during
the preceding 12 months has had on United States national
security.
(b) Export Control Authority and Functions.--
(1) In general.--Unless otherwise reserved to the President
or a department or agency outside the Department of Commerce,
all power, authority, and discretion conferred by this title
shall be exercised by the Secretary.
(2) Delegation of functions of the secretary.--The
Secretary may delegate any function under this title to the
Under Secretary of Commerce for Export Administration
appointed under subsection (d) or to any other officer of the
Department of Commerce.
[[Page H7578]]
(c) Export Control Policy Committee.--
(1) Establishment.--There is established an Export Control
Policy Committee (hereafter in this subsection referred to as
the ``Committee'').
(2) Functions.--The Committee shall--
(A) provide policy guidance and advice to the President on
export control issues under this title;
(B) review policy recommendations proposed by the Secretary
and other members of the Committee; and
(C) receive policy recommendations from other departments
and agencies and resolve policy disputes among departments
and agencies under this title.
(3) Membership.--The Committee shall include the Secretary,
the Secretary of Defense, the Secretary of Energy, the heads
of other relevant departments, and appropriate officials of
the Executive Office of the President.
(4) Chair.--The Committee shall be chaired by the President
or his designee.
(5) Delegation; other representatives.--A member of the
Committee under paragraph (3) may designate the deputy head
of his or her department or agency to serve in his or her
absence as a member of the Committee, but this authority may
not be delegated to any other individual. The chair may also
invite the temporary participation in the Committee's
meetings of representatives from other offices and agencies
as appropriate to the issues under consideration.
(6) Meetings.--The chair of the Committee may call a
meeting of the Committee. Meetings shall not be subject to
section 552b of title 5, United States Code.
(d) Under Secretary of Commerce; Assistant Secretaries.--
(1) Appointment.--The President shall appoint, by and with
the advice and consent of the Senate, an Under Secretary of
Commerce for Export Administration who shall carry out all
functions of the Secretary under this title and other
provisions of law relating to national security, as the
Secretary may delegate. The President shall appoint, by and
with the advice and consent of the Senate, two Assistant
Secretaries of Commerce to assist the Under Secretary in
carrying out such functions.
(2) Transition provisions.--Those individuals serving in
the positions of Under Secretary of Commerce for Export
Administration and Assistant Secretaries of Commerce under
section 15(a) of the Export Administration Act of 1979, on
the day before the date of the enactment of this Act, shall
be deemed to have been appointed under paragraph (1), by and
with the advice and consent of the Senate, as of such date of
enactment.
(e) Issuance of Regulations.--The President and the
Secretary may issue such regulations as are necessary to
carry out this title. Any such regulations the purpose of
which is to carry out section 105, 106, or 111(a) may be
issued only after the regulations are submitted for review to
such departments or agencies as the President considers
appropriate. The Secretary shall consult with the appropriate
export advisory committee appointed under section 104(f) in
formulating regulations under this title. The second sentence
of this subsection does not require the concurrence or
approval of any official, department, or agency to which such
regulations are submitted.
(f) Amendments to Regulations.--If the Secretary proposes
to amend regulations issued under this title, the Secretary
shall report to the Committee on Banking, Housing, and Urban
Affairs of the Senate and the Speaker of the House of
Representatives on the intent and rationale of such
amendments. Such report shall evaluate the cost and burden to
the United States exporters of the proposed amendments in
relation to any enhancement of licensing objectives. The
Secretary shall consult with the appropriate export advisory
committees appointed under section 104(f) in amending
regulations issued under this title.
(g) 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
108(b)(2), information obtained under the Export
Administration Act of 1979 and its predecessor statutes on or
before June 30, 1980, which is deemed confidential, including
Shipper's Export Declarations, or with reference 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
108(b)(2), information obtained under this title or under the
Export Administration Act of 1979 after June 30, 1980, may be
withheld from disclosure only to the extent permitted by
statute, except that information submitted, obtained, or
considered in connection with an application for an export
license or other export authorization under the Export
Administration Act of 1979 or this title, including--
(i) the export license or other export authorization
itself,
(ii) classification requests described in section
109(h)(1),
(iii) information obtained during the course of an
assessment under subsection (k),
(iv) information or evidence obtained in the course of any
investigation, and
(v) information obtained or furnished under this title in
connection with international agreements, treaties, or
obligations,
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 congress and gao.--
(A) In general.--Nothing in this title shall be construed
as authorizing the withholding of information from the
Congress or from the General Accounting Office.
(B) Availability to the congress.--
(i) In general.--All information obtained at any time under
this title or previous Acts regarding the control of exports,
including any report or license application required under
this title, 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 title or previous Acts
regarding the control of exports which 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 the information is
contrary to the national interest.
(C) Availability to the gao.--
(i) In general.--Notwithstanding paragraph (1), information
referred to in subparagraph (B) 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 the agency,
upon request, to the Comptroller General of the United States
or to any officer or employee of the General Accounting
Office authorized by the Comptroller General to have access
to such information.
(ii) Prohibition on further disclosures.--No officer or
employee of the General Accounting Office shall disclose,
except to the Congress in accordance with this paragraph, any
such information which is submitted on a confidential basis
and from which any individual can be identified.
(3) Information exchange.--Notwithstanding paragraph (1),
the Secretary and the Commissioner of Customs shall exchange
licensing and enforcement information with each other which
is necessary to facilitate enforcement efforts and effective
license decisions.
(4) Penalties for disclosure of confidential information.--
Any officer or employee of the United States, or any
department or agency thereof, who publishes, divulges,
discloses, or makes known in any manner or to any extent not
authorized by law any confidential information that--
(A) he or she obtains in the course of his or her
employment or official duties or by reason of any examination
or investigation made by, or report or record made to or
filed with, such department or agency, or officer or employee
thereof, and
(B) is exempt from disclosure under this subsection,
shall be fined not more than $10,000, or imprisoned not more
than one year, or both, shall be removed from office or
employment, and shall be subject to a civil penalty of not
more than $1,000 imposed by the Secretary under section
110(c).
(h) Authority for Seminar and Publications Fund.--The
Secretary is authorized to cooperate with public agencies,
other governments, international organizations, private
individuals, private associations, and other groups in
connection with seminars, publications, and related
activities to carry out export activities, including
educating the public or government officials on the
application of this title and the regulations issued under
this title. The Secretary is further authorized to accept
contributions of funds, property, or services in connection
with such activities to recover the cost of such programs and
activities. Contributions may include payments for materials
or services provided as part of such activities. The
contributions collected may be retained for use in covering
the costs of such activities, and for providing information
to the public with respect to this title and other export
control programs of the United States and other governments.
(i) Support of Other Countries' Export Control Program.--
The Secretary is authorized to participate in and provide
training to officials of other countries on the principles
and procedures for the implementation of effective export
controls and may participate in any such training provided by
other departments and agencies of the United States.
(j) Incorporated Commodities and Technology.--
(1) Commodities containing controlled parts and
components.--Controls may not be imposed under this title or
any other provision of law for a commodity solely because the
commodity contains parts or components subject to export
controls under this title if such parts or components--
(A) are essential to the functioning of the commodity,
[[Page H7579]]
(B) are customarily included in sales of the commodity in
countries other than controlled countries, and
(C) comprise 25 percent or less of the total value of the
commodity,
unless the commodity itself, if exported, would by virtue of
the functional characteristics of the commodity as a whole
make a significant contribution to the military or
proliferation potential of a controlled country or end user
which would prove detrimental to the national security of the
United States.
(2) Reexports of foreign-made items incorporating u.s.
items.--
(A) Commodities.--(i) No authority or permission may be
required under section 105 or section 106 to reexport to a
country other than a terrorist country or an embargoed
country a commodity that is produced in a country other than
the United States and incorporates commodities that are
subject to the jurisdiction of the United States, if the
value of the controlled United States content of the
commodity produced in such other country is 25 percent or
less of the total value of the commodity.
(ii) No authority or permission may be required under
section 105 or section 106 to reexport to a terrorist country
or to an embargoed country a commodity that is produced in a
country other than the United States and incorporates
commodities that are subject to the jurisdiction of the
United States, if the value of the controlled United States
content of the commodity produced in such other country is 10
percent or less of the total value of the commodity.
(B) Technology.--(i) No authority or permission may be
required under section 105 or section 106 to reexport to a
country other than a terrorist country or an embargoed
country technology that is produced in a country other than
the United States and is commingled with or drawn from
technology that is produced in the United States, if the
value of the controlled United States content of the
technology produced in such other country is 25 percent or
less of the total value of the technology.
(ii) No authority or permission may be required under
section 105 or section 106 to reexport to a terrorist country
or an embargoed country technology that is produced in a
country other than the United States and is commingled with
or drawn from technology that is produced in the United
States, if the value of the controlled United States content
of the technology produced in such other country is 10
percent or less of the total value of the technology.
(C) Definitions.--For purposes of this paragraph--
(i) the ``controlled United States content'' of a commodity
or technology means those commodities or technology that--
(I) are subject to the jurisdiction of the United States;
(II) are incorporated into the commodity or technology; and
(III) would, at the time of the reexport, require a license
under section 105 or 106 if exported from the United States
to a country to which the commodity or technology is to be
reexported;
(ii) an ``embargoed country'' is a country against which an
embargo is in effect under the Trading with the Enemy Act,
the International Emergency Economic Powers Act, or other
provision of law; and
(iii) a ``terrorist country'' is a country with respect to
which a determination is in effect that was made under
section 106(i)(1)(A) of this Act, or section 6(j)(1)(A) of
the Export Administration Act of 1979, that the government of
such country has repeatedly provided support for acts of
international terrorism.
(3) Treatment of technology and source code.--For purposes
of this subsection, technology and source code used to design
or produce foreign-made commodities are not deemed to be
incorporated into such foreign-made commodities.
(4) Reporting requirements.--Notwithstanding paragraphs (1)
through (3), the Secretary may require persons to report to
the Department of Commerce their proposed calculations and
underlying data sufficient for the Department of Commerce to
evaluate the adequacy of those calculations and data related
to commodities and technology before a reexporter may rely
upon the exclusions from controls provided in this
subsection.
(5) Exceptions.--Paragraphs (1) and (2) do not require any
changes to regulations in effect on the effective date of
this title and, notwithstanding paragraphs (1) and (2),
controls may be imposed on commodities or technology
transferred, after March 1, 1996, from export control under
the Arms Export Control Act to control under this title if
those commodities or technology are designated by the
President for exemption from paragraph (1) or (2), as the
case may be.
(k) Unfair Impact on United States Exporter.--
(1) Policy.--It is the policy of the United States that no
United States exporter should be affected unfairly by export
control policies or practices unless relief from such
controls would create a significant risk to the foreign
policy, nonproliferation, or national security interests of
the United States.
(2) Relief from export controls.--(A) A person may petition
the Secretary for relief from current export control
requirements (other than control requirements specifically
imposed by this title or other provisions of law) on the
basis of foreign availability. A person may also petition the
Secretary for approval of an export license application on
other grounds which the Secretary, with the concurrence of
the Secretary of Defense, shall establish by regulation. The
Secretary shall, upon receipt of such petitions, and may, on
his or her initiative, conduct assessments for providing
relief based upon these grounds.
(B) For purposes of this subsection, foreign availability
exists when the controlled item is available in fact, under
terms and conditions established by the Secretary with the
concurrence of the secretary of Defense, to controlled
countries or end users from sources outside the United States
so that the requirement for a license is or would be
ineffective in achieving the purpose of the control.
(3) Provisions for relief.--The Secretary, in consultation
with appropriate departments and agencies, shall make
determinations of facts under paragraph (2), addressing, in
the case of a petition filed under paragraph (2), each ground
for relief asserted in the petition, and, subject to
paragraph (4), shall provide at least one of the following
forms of relief to persons that meet the criteria in
paragraph (2):
(A) Change the control status of, or licensing requirements
on, all or some of the items in question so as to eliminate
the unfair impact.
(B) Selectively approve the sale of controlled items so as
to eliminate the unfair impact.
(C) Seek multilateral support to eliminate the source of
unfair impact. If relief under this subparagraph is chosen
and if such efforts fail to achieve multilateral support,
then the Secretary, not later than 330 days from the date of
the Secretary's initiation of the assessment under paragraph
(2), shall provide other relief pursuant to subparagraph (A)
or (B) or conclude pursuant to paragraph (4) that the
granting of such relief would create a significant risk to
United States nonproliferation, foreign policy, or national
security interests.
A determination that a petitioner qualifies for relief under
paragraph (2) shall not compel the United States to remove
controls from an item that remains subject to control by a
multilateral regime.
(4) Exceptions from relief.--The Secretary shall provide
relief under paragraph (3) to a petitioner who qualifies for
relief under paragraph (2) unless the Secretary concludes
that the granting of such relief would create a significant
risk to United States nonproliferation, foreign policy, or
national security interests. In the event the Secretary
determines to grant such relief, he or she may do so unless
the President determines that such relief would create a
significant risk to the foreign policy, nonproliferation, or
national security interests of the United States.
(5) Procedures.--
(A) Publication.--In any case in which the President or the
Secretary determines that relief under paragraph (3) will not
be granted, notwithstanding the existence of facts that
constitute a basis for granting relief, the Secretary shall
publish that determination, together with a concise statement
of its basis and the estimated economic impact of the
decision.
(B) Notice of assessments.--Whenever the Secretary
undertakes an assessment under paragraph (2), the Secretary
shall publish in the Federal Register notice of the
initiation of such assessment.
(C) Procedures for making determinations.--During the
conduct of an assessment under this subsection, the Secretary
shall consult with other appropriate departments and agencies
concerning the assessment. The Secretary shall make a
determination as to whether relief is required under
paragraph (2) within 120 days after the date of the
Secretary's receipt of the petition requesting relief or the
date of the Secretary's initiation of the assessment (as the
case may be) and shall so notify the applicant. If the
Secretary has determined that relief is appropriate, the
Secretary shall, upon making such a determination, submit the
determination for review to the Department of Defense and
other appropriate departments and agencies for consultations
regarding the findings and the relief selected. If the
Secretary of Defense or other department or agency head
disagrees with the Secretary's determination, he or she may
appeal the determination to the President in writing, but
only on the basis of the criteria set forth in paragraph (4).
The President shall resolve any such disagreement so that, in
all cases, not later than 150 days after the date of the
Secretary's receipt of the petition requesting relief or the
date of the Secretary's initiation of the assessment (as the
case may be), the Secretary responds in writing to the
petitioner and submits for publication in the Federal
Register, that--
(i) unfair impact exists and--
(I) the requirement of a license has been removed;
(II) the control status of all or some of the items in
question has been changed so as to eliminate the unfair
impact;
(III) the sale of controlled items has been approved so as
to eliminate the unfair impact;
(IV) export controls under this title are to be maintained
notwithstanding the finding under paragraph (2); or
(V) the United States recommendation to remove the license
requirement or change the control status will be submitted to
a relevant multilateral regime for consideration for a period
of not more than 180 days beginning on the date of the
publication; or
[[Page H7580]]
(ii) a right to relief under paragraph (2) does not exist.
The reasons for maintaining export controls under clause
(i)(IV) shall be included in the submission to the petitioner
and the publication. In any case in which the submission for
publication is not made within the 150-day period required by
this subparagraph, the Secretary may not thereafter require a
license for the export of items that are the subject of the
allegation under paragraph (2).
(D) Negotiations to eliminate unfair impact.--(i) In any
case in which export controls are maintained under this
section pursuant to paragraph (4) despite a determination of
unfair impact, the Secretary of State shall actively pursue
negotiations with the governments of the appropriate foreign
countries for the purpose of eliminating the unfair impact.
No later than the commencement of such negotiations, the
Secretary of State shall notify the Congress in writing that
the Secretary of State has begun such negotiations and why it
is important that export controls on the items involved be
maintained to avoid a significant risk to the foreign policy,
nonproliferation, or national security interests of the
United States.
(ii) Whenever the Secretary of State has reason to believe
that items subject to export controls by the United States
may become available in fact from other countries to
controlled countries and that such availability can be
prevented or eliminated by means of negotiations with such
other countries, the Secretary of State shall promptly
initiate negotiations with the governments of such other
countries to prevent such foreign availability.
(6) Sharing of information.--Each department or agency of
the United States, including any intelligence agency, and all
contractors with any such department or agency, shall, upon
the request of the Secretary and consistent with the
protection of intelligence sources and methods, furnish
information to the Department of Commerce concerning foreign
availability of items subject to export controls under this
title. Consistent with the protection of intelligence sources
and methods and classification restrictions, each such
department or agency shall allow the Department of Commerce
access to such information from a laboratory or other
facility within such department or agency.
(7) Congressional notification and reporting
requirements.--The Secretary shall each year notify the
Congress of all petitions for relief under this subsection
and the status of all such petitions.
(l) Exceptions for Medical and Humanitarian Purposes.--This
title does not authorize controls on--
(1) medicine or medical supplies; or
(2) donations of items that are intended to meet basic
human needs, including food, educational materials, seeds,
hand tools, water resources equipment, clothing and shelter
materials, and basic household supplies.
(m) Sanctity of Existing Contracts and Licenses.--
(1) In general.--In the case of a control imposed under
section 106 on the export of any items, the President may not
prohibit the export of those items--
(A) in performance of a contract, agreement, or other
contractual commitment entered into before the date on which
the control is initially imposed, or the date on which the
President reports to the Congress the President's intention
to impose the control, whichever date occurs first, or
(B) under a license or other authorization issued under
this title before the date on which the control is initially
imposed, or the date on which the President reports to the
Congress the President's intention to impose the control,
whichever date occurs first.
(2) Exception.--The prohibition in paragraph (1) shall not
apply if the President determines and certifies to the
Congress that--
(A) a breach of the peace poses a serious and direct threat
to the strategic interest of the United States;
(B) the prohibition of exports under each such contract,
agreement, commitment, license, or authorization will be
directly instrumental in remedying the situation posing the
direct threat; and
(C) the export controls will continue only so long as the
direct threat persists.
The authority of the President to make determinations under
this paragraph may not be delegated.
(n) Publication of Decisions and Actions of the
Secretary.--
(1) In general.--The Secretary shall publish in the Federal
Register, to the greatest extent practicable, actions,
procedures, and decisions of the Secretary under this title,
taking into account restrictions on disclosure of classified
or confidential information. The Secretary shall publish in
the Federal Register calculations by the Secretary of
commonly-used control index parameters for commodities and
technologies, including all officially accepted composite
theoretical performance calculations for computers and
microprocessors, except in a case in which a private party
requested the calculation and asked that it not be published.
(2) Notice of revisions.--Whenever the Secretary makes any
revision in the control index with respect to any commodity
or technology, or with respect to any country or destination
affected by controls imposed under section 105 or section
106, the Secretary shall publish in the Federal Register a
notice of such revision and shall specify in such notice
under which authority the revision is being made.
(o) Notification of the Public; Consultation With Industry;
Recordkeeping.--
(1) Notification of the public.--The Secretary shall keep
the public fully apprised of changes in export control policy
and procedures instituted under this title with a view to
encouraging trade.
(2) Consultation with industry.--The Secretary shall meet
regularly with export advisory committees appointed under
section 104(f) in order to obtain their views on United
States export control policy and the foreign availability of
commodities and technology.
(p) Export Control Duties.--
(1) Assignment.--The Secretary shall ensure that at least
one full-time representative of the Department of Commerce
stationed in the People's Republic of China has duties
related to the implementation of export controls under this
title. These duties shall include giving priority to
conducting postshipment verifications and prelicense checks,
and to using other means to ensure that United States exports
from the United States of dual use items are not diverted to
unauthorized end uses or end users.
(2) Other resources.--The Secretary shall ensure that
appropriate resources are made available and, if necessary,
new procedures established to assist the representative or
representatives of the Department of Commerce referred to in
paragraph (1) in carrying out their duties and to ensure that
sensitive items are not diverted to inappropriate end uses or
end users in the People's Republic of China. Efforts to carry
out this paragraph shall include appropriate coordination
with United States officials in Hong Kong to ensure that
sensitive items exported to Hong Kong are protected from
diversion.
(3) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
paragraph (1).
(q) Authorization for Technical Data.--A license
authorizing the export of any commodities or technology under
this title shall also authorize the export of operation
technical data related to such commodities or technology, if
the technical level of the data does not exceed the minimum
necessary to install, repair, maintain, inspect, operate, or
use the commodities or technology.
(r) Licenses for Spare Parts Not Required.--A license shall
not be required under this title for replacement parts which
are exported to replace on a one-for-one basis parts that
were in a commodity that was lawfully exported from the
United States, unless the President determines that such a
license should be required for such parts.
SEC. 115. ANNUAL REPORT.
(a) Contents.--Not later than March 1 of each year, the
Secretary shall submit to the Congress a report on the
administration of this title during the preceding calendar
year. All agencies shall cooperate fully with the Secretary
in providing information for such report. Such report shall
include detailed information on the following:
(1) The implementation of the policies set forth in section
103, including delegations of authority by the President
under section 104(d), consultations with the export advisory
committees established under section 104(f), and any changes
in the exercise of the authorities contained in sections
105(a), 106(a), 107(a), and 108(a).
(2) With respect to multilateral export controls imposed or
maintained under section 105, the following:
(A) Adjustments to multilateral export controls.
(B) The exercise of the Secretary's authority under section
105(e).
(3) Determinations made under section 114(k), the criteria
used to make such determinations, the removal of any export
controls under such section, and any evidence demonstrating a
need to maintain export controls notwithstanding
determinations made under paragraph (2) of section 114(k).
(4) Short supply controls and monitoring under section 107.
(5) Organizational and procedural changes undertaken in
furtherance of the policies set forth in this title,
including changes to increase the efficiency of the export
licensing process and to fulfill the requirements of section
109, including an accounting of appeals received, and actions
taken pursuant thereto, under section 109(g).
(6) Violations under section 110 and enforcement activities
under section 113.
(7) The issuance of regulations under this title.
(8) The results, in as much detail as may be included
consistent with the strategic and political interests of the
United States and the need to maintain the confidentiality of
proprietary information, of the reviews of the multilateral
control list, and any revisions to the list resulting from
such reviews, required by section 105.
(b) Comparative Report on Export Control Systems Among
Countries.--The Secretary shall include, in each annual
report under subsection (a), a description of significant
differences between the export control laws and regulations
of the United States and its major trade competitors,
particularly as these differences relate to the
implementation of multilateral export control regimes. The
Secretary shall include--
(1) an assessment of the impact of these differences on
important interests of the United States;
(2) a description of the extent to which the executive
branch intends to address these differences; and
[[Page H7581]]
(3) a listing of unilateral controls and embargoes imposed
by the United States that are in effect, with a
quantification of their economic impact, including the effect
of such controls and embargoes on employment in the United
States.
(c) GAO Report.--The Comptroller General shall prepare and
submit to the Congress, not later than 120 days after each
report under subsection (b) is submitted, an analysis of such
report.
SEC. 116. DEFINITIONS.
As used in this title:
(1) Affiliate.--The term ``affiliate'' includes both
governmental entities and commercial entities that are
controlled in fact by a country.
(2) Adherent.--An ``adherent'' to a multilateral regime is
a country that is a member of that regime or that, pursuant
to an international understanding to which the United States
is a party, controls exports in accordance with the criteria
and standards of that regime.
(3) Australia group.--The term ``Australia Group'' means
the multilateral regime in which the United States
participates that seeks to prevent the proliferation of
chemical and biological weapons.
(4) Chemical weapons convention.--The term ``Chemical
Weapons Convention'' refers to the Convention on the
Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on Their Destruction of 1992.
(5) Commodity.--The term ``commodity'' means any article,
natural or manmade substance, material, software, source
code, supply, or manufactured product, including inspection
and test equipment, and excluding technical data.
(6) Control or controlled.--The terms ``control'' and
``controlled'' refer to a licensing requirement, a written
reexport authorization requirement, or a prohibition on an
export.
(7) Control index.--The term ``control index'' means the
United States Commodity Control Index established under
section 104(b)(1).
(8) Controlled country.--The term ``controlled country''
means a country to which exports are controlled under section
105 or 106.
(9) Export.--(A) The term ``export''--
(i) means--
(I) an actual shipment, transfer, or transmission of items
out of the United States; and
(II) a transfer to any person of items either within the
United States or outside of the United States with the
knowledge or intent that the items will be shipped,
transferred, or transmitted outside the United States; and
(ii) includes the term ``reexport''.
(B) The Secretary may further define the term export by
regulation to include, among other concepts, that--
(i) a transfer of items in the United States to an embassy
or affiliate of a country is an export to the country,
(ii) disclosure of technology to a foreign person is deemed
to be an export to the country of which he or she is a
national, and
(iii) transfer of effective control from one country to
another over a satellite above the earth is an export from
one country to another.
(C) As used in this paragraph, the term ``foreign person''
means--
(i) an individual who is not a United States citizen or an
alien lawfully admitted for permanent residence to the United
States;
(ii) any corporation, partnership, business association,
society, trust, organization, or other nongovernmental entity
created or organized under the laws of a foreign country or
that has its principal place of business outside the United
States; and
(iii) any governmental entity of a foreign country that is
operating as a business enterprise.
(10) Export control regime, multilateral export control
regime, multilateral regime, and regime.--The terms ``export
control regime'', ``multilateral export control regime'',
``multilateral regime'', and ``regime'' each means an
international agreement or an arrangement among two or more
countries, including the United States, a purpose of which is
to coordinate national export control policies of
participating countries regarding certain items. Such terms
include the Australia Group, the Wassenaar Arrangement, the
MTCR, and the Nuclear Supplies Group.
(11) Foreign availability, available in fact to controlled
countries.--The terms ``foreign availability'' and
``available in fact to controlled countries'' each include
production or availability of any item from any country--
(A) in which the item is not restricted for export to any
controlled country; or
(B) in which such export restrictions are determined by the
Secretary to be ineffective.
For purposes of subparagraph (B), the mere inclusion of items
on a list of items subject to export controls imposed
pursuant to a multilateral export control regime shall not
alone constitute credible evidence that the government of a
country provides an effective means of controlling the export
of such items to controlled countries.
(12) Item.--The term ``item'' means any commodity,
technology, or other information.
(13) Licensing requirement.--The term ``licensing
requirement'' includes any restriction or condition,
including recordkeeping and reporting, imposed by the
Secretary under this title in licensing the export of a
commodity, technology, or other information.
(14) Member of an export control regime.--A ``member'' of
an export control regime, multilateral export control regime,
multilateral regime, or regime is a country that participates
in that regime.
(15) Missile.--The term ``missile'' means any missile
system or component listed in category I of the MTCR Annex,
and any other unmanned delivery system or component of
similar capability, as well as the specially designed
production facilities for these systems.
(16) Missile technology control regime; mtcr.--The term
``Missile Technology Control Regime'' or ``MTCR'' means the
policy statement and guidelines between the United States,
the United Kingdom, the Federal Republic of Germany, France,
Italy, Canada, and Japan, announced on April 16, 1987, to
restrict sensitive missile-related transfers based on the
MTCR Annex, and any amendments thereto.
(17) MTCR annex.--The term ``MTCR Annex'' means the
Equipment and Technology Annex of the MTCR, and any
amendments thereto.
(18) Nuclear explosive device.--The term ``nuclear
explosive device'' means any device, whether assembled or
disassembled, that is designed to produce an instantaneous
release of an amount of nuclear energy from special nuclear
material that is greater than the amount of energy that would
be released from the detonation of one pound of
trinitrotoluene (TNT).
(19) Nuclear suppliers' group.--The term ``Nuclear
Suppliers' Group'' means the multilateral arrangement in
which the United States participates whose purpose is to
restrict the transfers of items with relevance to the nuclear
fuel cycle or nuclear explosive applications.
(20) Person.--Except as provided in section 111, the term
``person'' includes--
(A) the singular and the plural and any individual,
partnership, corporation, business association, society,
trust, organization, or any other group created or organized
under the laws of a country; and
(B) any government, or any governmental body, corporation,
trust, agency, department, or group, operating as a business
enterprise.
(21) Reexport.--The term ``reexport'' means the shipment,
transfer, transshipment, or diversion of items from one
foreign country to another.
(22) Secretary.--The term ``Secretary'' means the Secretary
of Commerce or any successor officer performing functions of
the Secretary of Commerce under this title.
(23) Technology.--The term ``technology'' means specific
information that is necessary for the development,
production, or use of a commodity, including source code, and
that takes the form of technical data or technical
assistance.
(24) Unilateral and unilaterally.--The terms ``unilateral''
and ``unilaterally'', with respect to an export control on a
commodity or technology, refer to a control that is not
similarly imposed in similar circumstances by any country
other than the United States, and that materially restricts
the export of the commodity or technology.
(25) United states.--The term ``United States'' means the
States of the United States, the District of Columbia, and
any commonwealth, territory, dependency, or possession of the
United States, and includes the outer Continental Shelf, as
defined in section 2(a) of the Outer Continental Shelf Lands
Act (43 U.S.C. 1331(a)).
(26) United states person.--The term ``United States
person'' means any United States citizen, resident, or
national (other than an individual resident outside the
United States and employed by other than a United States
person), any domestic concern (including any permanent
domestic establishment of any foreign concern) and any
foreign subsidiary or affiliate (including any permanent
foreign establishment) of any domestic concern which is
controlled in fact by such domestic concern, as determined
under regulations of the President.
(27) Wassenaar arrangement.--The term ``Wassenaar
Arrangement'' means the multilateral regime in which the
United States participates that seeks to promote transparency
and responsibility with regard to the transfers of
conventional armaments and sensitive dual-use goods and
technologies.
(28) Weapon of mass destruction.--The term ``weapon of mass
destruction'' means any chemical, biological, or nuclear
weapon, including a nuclear explosive device.
SEC. 117. EFFECTS ON OTHER ACTS.
(a) Commodity Jurisdiction.--
(1) Coordination of controls.--The authority granted under
this title and under section 38 of the Arms Export Control
Act (22 U.S.C. 2778) shall be exercised in such a manner as
to achieve effective coordination between the licensing
systems under this title and such section 38 and to share
information regarding the trustworthiness of parties.
(2) Elimination of overlapping controls.--Notwithstanding
any other provision of law, no item may be included on both
the control index and the United States Munitions List after
the date of the enactment of this Act.
[[Page H7582]]
(3) Commodity jurisdiction dispute resolution.--The
President shall establish procedures for the resolution of
commodity jurisdiction disputes among departments and
agencies of the United States. Such disputes shall normally
be resolved within 60 days, and the procedures shall allow
disputes to be referred to the President normally within 90
days. These procedures shall also--
(A) require the Secretary and the Secretary of State to
refer matters to each other in accordance with their
respective jurisdictions;
(B) require transparency, among the Secretary, the
Secretary of State, and the Secretary of Defense, in
commodity jurisdiction cases and commodity classification
requests and determinations;
(C) provide for interagency meetings and consultations to
permit the free exchange of views regarding significant
jurisdictional issues; and
(D) provide deadlines for action and standards for
decision, and ensure that disputes that cannot be resolved
may be referred to the President by the Secretary of State,
the Secretary of Defense, or the Secretary.
(b) In General.--Except as otherwise provided in this
title, nothing in this title shall be construed to modify,
repeal, supersede, or otherwise affect the provisions of any
other laws authorizing control over exports of any
commodities, technology, or other information.
(c) Licensing Process.--The provisions of section 109 shall
supersede the procedures published pursuant to section 309(c)
of the Nuclear Non-Proliferation Act of 1978 (42 U.S.C.
2139a(c)) to the extent such procedures are inconsistent with
the provisions of section 109.
(d) Amendments to the International Emergency Economic
Powers Act.--
(1) Exercise of presidential authority.--(A) Section 204(b)
of the International Emergency Economic Powers Act (50 U.S.C.
1703(b)) is amended--
(i) by striking ``and'' at the end of paragraph (4);
(ii) by striking the period at the end of paragraph (5) and
inserting ``; and''; and
(iii) by adding at the end the following:
``(6) if the action is being taken unilaterally--
``(A) why the President believes the action is necessary to
meet the unusual and extraordinary threat referred to in
paragraph (2); and
``(B) what steps the President is taking to gain
multilateral support for the action.''.
(B) Section 204(c) of that Act (50 U.S.C. 1703(c)) is
amended--
(i) by striking ``(5)'' and inserting ``(6)''; and
(ii) by striking the period and inserting ``, and, in the
case of controls referred to in paragraph (6) of subsection
(b), the President shall report to the Congress on the
economic losses that have occurred as a result of the
unilateral action''.
(2) Confidentiality of information.--The International
Emergency Economic Powers Act is amended--
(A) by redesignating section 208 as section 209; and
(B) by inserting after section 207 the following:
``SEC. 208. CONFIDENTIALITY OF INFORMATION.
``(a) Exemptions From Disclosure.--Information obtained
under this title before or after the enactment of this
section may be withheld only to the extent permitted by
statute, except that information submitted, obtained, or
considered in connection with any transaction that would
otherwise be prohibited under this title, including--
``(1) the license or other authorization itself,
``(2) classification requests or other inquiries on the
applicability of export license requirements to a proposed
transaction or series of transactions,
``(3) information or evidence obtained in the course of any
investigation, and
``(4) information obtained or furnished under this title in
connection with international agreements, treaties, or
obligations,
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 of Commerce or the Secretary of
the Treasury to be in the national interest. In the case of
information obtained or furnished under this title in
connection with international agreements, treaties, or
obligations, such a determination may be made only after
consultation with the Secretary of State.
``(b) Information to Congress and GAO.--
``(1) In general.--Nothing in this title shall be construed
as authorizing the withholding of information from the
Congress or from the General Accounting Office.
``(2) Availability to the congress.--
``(A) In general.--All information obtained at any time
under this title regarding the control of exports, including
any report or license application required under this title,
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.
``(B) Prohibition on further disclosure.--No committee,
subcommittee, or Member of Congress shall disclose any
information obtained under this title or previous Acts
regarding the control of exports which is submitted on a
confidential basis to the Congress under subparagraph (A)
unless the full committee to which the information is made
available determines that the withholding of the information
is contrary to the national interest.
``(3) Availability to the gao.--
``(A) In general.--Notwithstanding paragraph (1),
information referred to in paragraph (2) 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 the agency, upon request, to the Comptroller General of
the United States or to any officer or employee of the
General Accounting Office authorized by the Comptroller
General to have access to such information.
``(B) Prohibition on further disclosures.--No officer or
employee of the General Accounting 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.
``(c) Penalties for Disclosure of Confidential
Information.--Any officer or employee of the United States,
or any department or agency thereof, who publishes, divulges,
discloses, or makes known in any manner or to any extent not
authorized by law any confidential information that--
``(1) he or she obtains in the course of his or her
employment or official duties or by reason of any examination
or investigation made by, or report or record made to or
filed with, such department or agency, or officer or employee
thereof, and
``(2) is exempt from disclosure under this section,
shall be fined not more than $10,000, or imprisoned not more
than 1 year, or both, shall be removed from office or
employment, and shall be subject to a civil penalty of not
more than $1,000.''.
(3) Penalties.--Section 206 of the International Emergency
Economic Powers Act (50 U.S.C. 1705) is amended--
(A) in subsection (a) by inserting ``, or attempts to
violate,'' after ``violates''; and
(B) in subsection (b) by inserting ``, or willfully
attempts to violate,'' after ``violates''.
(e) Amendments to the Trading With the Enemy Act.--Section
16 of the Trading With the Enemy Act (50 U.S.C. App. 16) is
amended--
(1) in subsection (a)--
(A) by inserting ``, or attempt to violate,'' after
``violate'' the first place it appears; and
(B) by inserting ``attempt to violate,'' after ``violate,''
the second place it appears; and
(2) in subsection (b)(1) by inserting ``, or attempts to
violate,'' after ``violates''.
(f) Report on OFAC and ODTC.--
(1) Study on ofac.--The Secretary of the Treasury shall
study ways to make the operations of the Office of Foreign
Assets Control of the Department of the Treasury more
effective and efficient in responding to licensing requests
and other inquiries of United States exporters, including
through the upgrading of technology in that office.
(2) Study on odtc.--The Secretary of State shall study ways
to make the Office of Defense Trade Controls of the
Department of State more effective and efficient in
responding to licensing requests and other inquiries of
United States exporters, including through the upgrading of
technology in that office.
(3) Submission of reports.--Not later than 6 months after
the date of the enactment of this Act, the Secretary of the
Treasury shall submit to the Congress a report on the study
conducted under paragraph (1) and the Secretary of State
shall submit to the Congress a report on the study conducted
under paragraph (2).
SEC. 118. SECONDARY ARAB BOYCOTT.
(a) Sense of Congress.--
(1) Ending secondary boycott.--It is the sense of the
Congress that the countries of the Arab League should end the
secondary Arab boycott.
(2) Actions to end secondary boycott.--The United States
will consider the secondary Arab boycott to have ended when--
(A) the Arab League issues a public pronouncement that the
Arab League has ended the secondary Arab boycott;
(B) all activities carried out by the Central Office for
the Boycott of Israel in support of the secondary Arab
boycott have been terminated;
(C) the Arab League and the individual countries that are
members of the Arab League have terminated the practice of
barring United States persons and foreign companies that do
not comply with the secondary Arab boycott from doing
business with countries that are members of the Arab League,
and have declared null and void any existing list of such
barred persons and companies; and
(D) the Arab League, and the individual countries that are
the members of the Arab League, have ceased requesting United
States persons to take actions prohibited under section
108(a).
(b) Definition.--For purposes of this section, the term
``secondary Arab boycott'' means the refusal to do business
with persons who do not comply with requests to take any
action prohibited under section 108(a) with respect to
Israel.
SEC. 119. CONFORMING AMENDMENTS.
(a) Arms Export Control Act.--
(1) Section 38 of the Arms Export Control Act (22 U.S.C.
2778) is amended--
[[Page H7583]]
(A) in subsection (e)--
(i) in the first sentence by striking ``subsections (c)''
and all that follows through ``12 of such Act'' and inserting
``subsections (b), (c), (d) and (e) of section 110 of the
Export Administration Act of 1996, by subsections (a) and (b)
of section 113 of such Act, and by section 114(g) of such
Act''; and
(ii) in the third sentence by striking ``11(c) of the
Export Administration Act of 1979'' and inserting ``110(c) of
the Export Administration Act of 1996''; and
(B) in subsection (g)(1)(A) by striking clause (ii) and
inserting the following:
``(ii) section 110 of the Export Administration Act of
1996,''.
(2) Section 39A(c) of the Arms Export Control Act, as added
by the Foreign Relations Authorization Act, Fiscal Years 1994
and 1995, is amended--
(A) by striking ``(c),'' and all that follows through
``12(a) of such Act'' and inserting ``(c), (d), and (e) of
section 110, section 112(c), and subsections (a) and (b) of
section 113, of the Export Administration Act of 1996''; and
(B) by striking ``11(c)'' and inserting ``110(c)''.
(3) Section 40(k) of the Arms Export Control Act (22 U.S.C.
2780(k)) is amended--
(A) by striking ``11(c), 11(e), 11(g), and 12(a) of the
Export Administration Act of 1979'' and inserting ``110(b),
110(c), 110(e), 113(a), and 113(b) of the Export
Administration Act of 1996''; and
(B) by striking ``11(c)'' and inserting ``110(c)''.
(4) Section 73A of the Arms Export Control Act, as added by
the Foreign Relations Authorization Act, Fiscal Years 1995
and 1995, is amended by striking ``a MTCR adherent'' and
inserting ``an MTCR adherent''.
(b) Other Provisions of Law.--
(1) Section 5(b)(4) of the Trading with the Enemy Act (12
U.S.C. 95a(4); 50 U.S.C. App. 5(b)(4)) is amended by striking
``section 5 of the Export Administration Act of 1979, or
under section 6 of that Act to the extent that such controls
promote the nonproliferation or antiterrorism policies of the
United States'' and inserting ``the Export Administration Act
of 1996''.
(2) Section 502B(a)(2) of the Foreign Assistance Act of
1961 (22 U.S.C. 2304(a)(2)) is amended in the second
sentence--
(A) by striking ``Export Administration Act of 1979'' the
first place it appears and inserting ``Export Administration
Act of 1996''; and
(B) by striking ``Act of 1979)'' and inserting ``Act of
1996)''.
(3)(A) Section 140(a) of the Foreign Relations
Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C.
2656f(a)) is amended--
(i) in paragraph (1)(B) by inserting ``or section 106(i) of
the Export Administration Act of 1996'' after ``Act of
1979''; and
(ii) in paragraph (2) by striking ``6(j) of the Export
Administration Act of 1979'' and inserting ``106(i) of the
Export Administration Act of 1996''.
(B) For purposes of the report required by March 31, 1996,
under section 140(a) of the Foreign Relations Authorization
Act, Fiscal Years 1988 and 1989, the reference in paragraph
(2) of such section to ``section 106(i) of the Export
Administration Act of 1996'' shall be deemed to refer to
``section 6(j) of the Export Administration Act of 1979 or
section 106(i) of the Export Administration Act of 1996''.
(4) Section 40(e)(1) of the State Department Basic
Authorities Act of 1956 (22 U.S.C. 2712(e)(1)) is amended by
striking ``6(j)(1) of the Export Administration Act of 1979''
and inserting ``106(i)(1) of the Export Administration Act of
1996''.
(5) Section 110 of the International Security and
Development Cooperation Act of 1980 (22 U.S.C. 2778a) is
amended by striking ``Act of 1979'' and inserting ``Act of
1996''.
(6) Section 205(d)(4)(B) of the State Department Basic
Authorities Act of 1956 (22 U.S.C. 4305(d)(4)(B)) is amended
by striking ``6(j) of the Export Administration Act of 1979''
and inserting ``106(i) of the Export Administration Act of
1996''.
(7) Section 203(b)(3) of the International Emergency
Economic Powers Act (50 U.S.C. 1702(b)(3)) is amended by
striking ``section 5 of the Export Administration Act of
1979, or under section 6 of such Act to the extent that such
controls promote the nonproliferation or antiterrorism
policies of the United States'' and inserting ``the Export
Administration Act of 1996''.
(8) Section 491(f) of the Forest Resources Conservation and
Shortage Relief Act of 1990 (16 U.S.C. 620c(f)) is repealed.
(9) Section 499 of the Forest Resources Conservation and
Shortage Relief Act of 1990 (16 U.S.C. 620j) is amended by
striking ``section 7 of the Export Administration Act of
1979'' and inserting ``section 107 of the Export Act of
1996''.
(10) Section 1605 (a)(7)(A) of title 28, United States
Code, is amended by striking ``6(j) of the Export
Administration Act of 1979 (50 U.S.C. App. 2405(j))'' and
inserting ``106(i) of the Export Administration Act of
1996''.
(11) Section 2332d(a) of title 18, United States Code, is
amended by striking ``6(j) of the Export Administration Act
(50 U.S.C. App. 2405)'' and inserting ``106(i) of the Export
Administration Act of 1996''.
(12) Section 620H (a)(1) of the Foreign Assistance Act of
1961 (22 U.S.C. 2378(a)(1)) is amended by striking ``6(j) of
the Export Administration Act of 1979 (50 U.S.C. App.
2405(j))'' and inserting ``106(i) of the Export
Administration Act of 1996''.
(13) Section 1621(a) of the International Financial
Institutions Act (22 U.S.C. 262p-4q(a)) is amended by
striking ``6(j) of the Export Administration Act of 1979 (50
U.S.C. App. 2405(j))'' and inserting ``106(i) of the Export
Administration Act of 1996''.
(c) Repeal.--The Export Administration Act of 1979 is
repealed.
SEC. 120. EXPIRATION DATE.
This title expires on June 30, 2001.
SEC. 121. SAVINGS PROVISIONS.
(a) In General.--All delegations, rules, regulations,
orders, determinations, licenses, or other forms of
administrative action which have been made, issued,
conducted, or allowed to become effective under--
(1) the Export Control Act of 1949, the Export
Administration Act of 1969, or the Export Administration Act
of 1979, or
(2) those provisions of the Arms Export Control Act which
are amended by section 119,
and are in effect at the time this title takes effect, shall
continue in effect according to their terms until modified,
superseded, set aside, or revoked under this title or the
Arms Export Control Act.
(b) Administrative and Judicial Proceedings.--
(1) Export administration act.--This title shall not affect
any administrative or judicial proceedings commenced or any
application for a license made, under the Export
Administration Act of 1979, which is pending at the time this
title takes effect. Any such proceedings, and any action on
such application, shall continue under the Export
Administration Act of 1979 as if that Act had not been
repealed.
(2) Other provisions of law.--This title shall not affect
any administrative or judicial proceedings commenced or any
application for a license made, under those provisions of the
Arms Export Control Act which are amended by section 119, if
such proceedings or application is pending at the time this
title takes effect. Any such proceedings, and any action on
such application, shall continue under those provisions as if
those provisions had not been amended by section 119.
(c) Treatment of Certain Determinations.--Any determination
with respect to the government of a foreign country under
section 6(j) of the Export Administration Act of 1979, that
is in effect at the time this title takes effect, shall, for
purposes of this title or any other provision of law, be
deemed to be made under section 106(i) of this Act until
superseded by a determination under such section 106(i).
TITLE II--NUCLEAR PROLIFERATION PREVENTION
SEC. 201. REPEAL OF TERMINATION OF PROVISIONS OF THE NUCLEAR
PROLIFERATION PREVENTION ACT OF 1994.
(a) Repeal.--Part D of the Nuclear Proliferation Prevention
Act of 1994 (part D of title VIII of the Foreign Relations
Authorization Act, Fiscal Years 1994 and 1995; Public Law
103-236; 108 Stat. 525) is hereby repealed.
(b) Presidential Determinations.--Section 824(c) of the
Nuclear Proliferation Prevention Act of 1994 is amended by
striking ``, in writing after opportunity for a hearing on
the record,''.
(c) Judicial Review.--Section 824 of the Nuclear
Proliferation Prevention Act of 1994 is amended--
(1) by striking subsection (e); and
(2) by redesignating subsections (f) through (k) as
subsections (e) through (j), respectively.
(d) Conforming Amendment.--Section 102(b)(2)(G) of the Arms
Export Control Act (22 U.S.C. 2799aa-1(b)(2)(G)) is amended
by striking ``section 6 of the Export Administration Act of
1979'' and inserting ``section 105 or 106 of the Export
Administration Act of 1996''.
SEC. 202. SEEKING MULTILATERAL SUPPORT FOR UNILATERAL
SANCTIONS.
The Secretary of State, in consultation with appropriate
departments and agencies, shall seek the support of other
countries for sanctions imposed under the Nuclear
Proliferation Prevention Act of 1994 or the amendments made
by that Act.
SEC. 203. SANCTIONS UNDER THE NUCLEAR PROLIFERATION
PREVENTION ACT OF 1994.
Section 102(b)(2) of the Arms Export Control Act (22 U.S.C.
2799aa-1(b)(2)) is amended--
(1) in subparagraph (D) by striking ``shall not apply--''
and all that follows through the end of clause (ii) and
inserting ``shall not apply to humanitarian assistance.'';
(1) in subparagraph (G) by striking ``, except that'' and
all that follows through the end of the subparagraph and
inserting a period; and
(3) by adding at the end the following:
``(H)(i) The President shall prohibit the importation into
the United States of specific products produced in that
country by persons who have engaged in the activities
described in paragraph (1) that were the basis of the
President's determination under such paragraph.
``(ii) In the event that it is not possible to identify the
persons who have engaged in the activities described in
paragraph (1) that were the basis of the President's
determination under such paragraph, the President shall
prohibit the importation into the United States of products
produced in that country by those persons that the President
shall designate as most closely identified with those
activities.
[[Page H7584]]
``(iii) For purposes of this subparagraph, the term
`person' means--
``(I) a natural person;
``(II) a corporation, business association, partnership,
society, or trust, or any other nongovernmental entity,
organization, or group;
``(III) a governmental entity operating as a business
enterprise;
``(IV) a division or office of a governmental department;
or
``(V) a military unit or successor to such unit.
``(iv) The prohibition on imports imposed under this
subparagraph shall be in addition to any other prohibition on
imports in effect before the President's determination under
paragraph (1) is made.
The prohibitions contained in subparagraphs (D), (G), and (H)
shall not apply to any transaction subject to the reporting
requirements of title V of the National Security Act of
1947.''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Wisconsin [Mr. Roth] and the gentleman from Connecticut [Mr. Gejdenson]
will each be recognized for 20 minutes.
The Chair recognizes the gentleman from Wisconsin [Mr. Roth].
Mr. ROTH. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this bill before us is a result of an enormous amount of
work by many, many people. As this session began, I spoke to President
Clinton and with the gentleman from New York, Chairman Gilman, and the
gentleman from South Carolina, Chairman Spence, and many others about
working together for a good, balanced reform bill that we could all
support.
We spent 14 months in bipartisan discussion, talks involving our
committee, and the administration, and the Committee on National
Security.
We knew that we needed to respond to new challenges: There is a new
added urgency to our fight against the proliferation and international
terrorism; COCOM has disappeared and cooperation among our allies is
far more difficult; our Government is resorting to unilateral controls,
all too frequently, often at the expense of U.S. workers; and
technological progress in many areas has accelerated, putting many
products beyond the effective control of governments.
Mr. Speaker, we have successfully met these challenges in this bill,
H.R. 361. The bill strikes a careful balance, replacing an expired
cold-war law with a new statute that focuses on today's challenges.
Let me list some of the bill's key provisions.
First, the bill creates a new emphasis on strengthening multilateral
export controls and on reducing U.S. reliance on unilateral controls.
While unilateral controls are permitted, the President must annually
justify them.
The President must also annually estimate and justify their cost to
the U.S. economy, and he must identify what is being done to make the
controls multilateral.
Second, the bill combats the proliferation of weapons of mass
destruction and the missiles to deliver them. This includes tough
prohibitions on the exports to countries not supporting multilateral
efforts on nonproliferation. It also includes strengthened sanctions on
persons who aid international proliferations.
Third, the bill cracks down on dual-use exports and reexports to
terrorist countries. Sensitive exports are simply prohibited. Plus, the
Secretary of State is given new duties to ensure greater multilateral
support for these tough controls.
Fourth, the bill removes unneeded bureaucracy and cold-war
impediments to export competitiveness. For instance, the bill
streamlines the procedures and reduces, in half, licensing time lines.
It provides new procedures for ensuring that U.S. exporters are treated
fairly and that U.S. controls are clear and understandable.
It establishes new rights for exporters to seek administrative and
judicial review. The bill codifies new principles for deciding issues
of jurisdiction between the State Department munitions list and the
Commerce Department dual-use list.
Mr. Speaker, these are just the highlights. I should also note that
compromises have been made. The bill does not do everything that I or
the gentleman from Connecticut [Mr. Gejdenson], or anyone on
our committee would prefer. For example, I wish we would have been able
to do something more on encryption and the like, but it can and should
become law, this bill.
Mr. Speaker, I want to pay special tribute to the gentleman from New
York [Mr. Gilman], the full committee chairman, and the gentleman from
Indiana [Mr. Hamilton] and the gentleman from Connecticut [Mr.
Gejdenson], our minority side, for their work, and especially the
staffs who worked with us for 14 months in negotiation on this piece of
legislation. Without their stalwart efforts over many years of reform,
we would not be here today.
I also want to acknowledge the work of the National Security Advisor
Tony Lake and his team at the NSC. They have been tireless in their
support.
Mr. Speaker, I would like to acknowledge the contributions of other
committees with jurisdiction. As I have mentioned, the gentleman from
South Carolina [Mr. Spence] and his committee staff have been an
invaluable part of these discussions in coming to a good resolution on
this bill.
I would like to thank the gentleman from Texas [Mr. Archer], chairman
of the Committee on Ways and Means, who reported the import sanctions
provision retained in both section 1711 and section 203; the gentleman
from New York [Mr. Solomon], the Committee on Rules, and his staff, who
have contributed important technical improvement, especially on section
107; and the staff of the Permanent Select Committee on Intelligence.
They all have provided key assistance on provisions affecting the
intelligence community.
We have been helped greatly by such industry leaders as Mike
Armstrong of Hughes Electronics and Mike Jordan of Westinghouse
Electric. Their testimony and their advice have been invaluable. There
have been so many CEO's in America who have contacted us on this
legislation.
{time} 1430
I also want to thank all the associations who have worked closely
with us and their support in making today possible: the Association of
Manufacturing Technology [AMT] and its 356 machine tool companies. I
want to thank the aerospace industry, and I want to thank the Chemical
Manufacturers Association, the Agricultural Export Alliance and the
American Farm Bureau.
Mr. Speaker, in conclusion, I recall introducing this bill, H.R. 361,
on the first day of the Congress. My goal was simple, to reform our
outdated export control system and to help our high-technology industry
to create new jobs, good paying jobs, for American workers. This bill
does that. It replaces a 17-year-old dinosaur with a law that is
updated and forward looking.
With H.R. 361's passage, we will help the United States enter the
21st century as the most successful and the most responsible exporting
state in the world, and I urge all my colleagues to adopt and to vote
for this legislation.
Mr. GEJDENSON. Mr. Speaker, I yield myself such time as I may
consume.
First, I would like to express my profound regret that the gentleman
from Wisconsin will not be seeking a return to this Chamber. It has
befuddled some, but the gentleman and I have had a great working
relationship for a number of years, both when I was chairman and now
under his chairmanship.
I have always found him to be honorable and hard-working and
straightforward. Sometimes he would get it wrong, but I am sure he felt
the same way about me. So it has been a great pleasure to work with
him, and I look forward to many years of friendship. I think he is a
terrific Member, and I think he has made a valiant effort, and I know,
having brought this bill out on a number of occasions. It is a
difficult challenge to get a real change through the Congress.
We can remember in 1989, the Bush administration found itself in a
horrendous battle between Secretary of Defense Cheney and Secretary of
Commerce Mosbacher. Secretary Mosbacher decontrolled 286 computers.
Secretary Cheney seemed to be ready to assure us that this would give
the Soviet Union the ability to rejuvenate itself and pass us
militarily. There was this great debate in Washington whether Mosbacher
had gone too far. Of course, I do not know what one could do with a 286
computer today except for using it as a paperweight, but that is part
of the problem with this bill.
[[Page H7585]]
This bill is going to pass, Mr. Speaker, and I will not oppose it.
While I am not going to oppose it, however, I cannot endorse it. I
think what we do here is we do very little really to grab hold of the
kinds of initiatives we need to deal with the terrorism and the spread
of the kind of technologies, choke point technologies, that we might be
able to control if we were more serious. At the same time, we hobble
the American export market which has a direct impact on our workers and
the vitality of our economy because these modern technologies are our
future. They are where we are most competitive.
We give ourselves, as this legislation does, as much as half a year
to get an export license, while in Germany, France, Japan and the rest
of the countries around the glove, who have the exact same technology,
they will just walk through an agency and in many, many instances not
need any license at all.
The problem with this new agreement that replaces COCOM is that,
frankly, it all ends up being unilateral controls. We end up in a
situation where it will be controlled in the United States, but the
Germans and the Japanese will make no effort to control it. The reason
here is, I think, we have to focus on what is doable. We have to focus
on getting cooperative agreements on critical technologies, on choke
point technologies. But we also have to have the understanding that,
while we ought not be racing to provide sensitive technologies to
dangerous countries, frankly, the gentleman from Wisconsin and I have
worked together, and the gentleman from New York [Mr. Gilman] and I
have worked on the terrorism legislation to deny all technologies to
the Libyas and Irans of this world who are leaders in the kind of
terrorism that exists today. But the reality is we do not make the kind
of definitions that are necessary.
We do not deal with foreign availability. If it can be bought in
Radio Shack in Beijing, it is too late to try to control it as an
export product from the United States. We found that through the years
we would fight for export license for 386 chips while they could be
bought in stores in China.
The failure to deal with the difference between a dual-use item and a
munition will leave us where we are and where we have been in the past,
where at one point an American company could not sell bank smart cards
to a British bank. Not that they were not available, not that it was
not clearly a nonmilitary use, but because there was encryption
involved that ended getting dragged into the same category as bullets
and bombs.
This bill does not give American exporters the kind of platform to
challenge bureaucratic insanity. If you are down there buried in the
bowels of the government, most people do great work; but the instinct
is why take a chance, and not taking a chance may cripple America's
economy because these are the jobs of the future. It is not simply
profits we are talking about, we are talking about the vitality of
American industry, the vitality of our work force, and the vitality of
our economy.
I commend the chairman for doing what he has done, though, because
this is a very tough Congress. With the extreme nature of some of the
politics of this Congress, the gentleman probably would have never
gotten it through some of the other committees. My admiration for the
gentleman from Wisconsin, Chairman Roth, continues. I am just
frustrated, frankly, that we have not been able to do more.
That is basically not a tricky decision. It is a rational process. If
we can buy it in every other country in the globe, American control
does not achieve anything. If we have something that is dual use, it
ought not be dealt with as if it was a missile system. So we have made
some progress here; we have not made enough.
These are the critical industries for the future. We ought to be
nurturing them and doubling our efforts to fight terrorism, not leaving
them hobbled in what may be 6 months of bureaucracy while purchasers of
these products are running into Germany and Japan and walking out
without any waiting period.
Mr. Speaker, I reserve the balance of my time.
Mr. ROTH. Mr. Speaker, I yield myself such time as I may consume to
say that, first of all, I want to thank the gentleman from Connecticut
[Mr. Gejdenson] for his strong support of this legislation and for
backing the legislation. I do not know of anyone in this body who has a
greater understanding of the legislation than Mr. Gejdenson does, so I
appreciate his support very much.
General Leave
Mr. ROTH. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days within which to revise and extend their remarks
on H.R. 361.
The SPEAKER pro tempore. (Mr. Gutknecht). Is there objection to the
request of the gentleman from Wisconsin?
There was no objection.
Mr. ROTH. Mr. Speaker, I yield 5 minutes to the gentleman from New
York [Mr. Gilman], chairman of our full committee. In doing that, I
again want to thank him for his strong support and his help and the
staff's help on this legislation.
(Mr. GILMAN asked and was given permission to revise and extend his
remarks.)
Mr. GILMAN. Mr. Speaker, I thank the gentleman for yielding me this
time.
I rise in strong support of the Export Administration Act of 1996,
the first significant reform of our export control laws in the past two
decades. It will bring our export control statutes in conformity to the
post-cold war era and will strengthen our export controls in such key
markets as China.
I want to congratulate the distinguished gentleman from Wisconsin,
the chairman of the Subcommittee on International Economic Policy and
Trade, for his outstanding work on this legislation as well as his
support of the gentleman from Connecticut [Mr. Gejdenson] the
committee's distinguished ranking member.
The gentleman from Wisconsin [Mr. Roth] has been unwavering in his
determination to move this bill, and the successful negotiations with
the Committee on National Security and with the administration have
enabled our committee to bring this bill to the House floor today under
a suspension of the rules.
During our committee's markup on this vitally important legislation,
the Committee on International Relations considered an export control
text that greatly tightened statutory restrictions on exports to
terrorist nations, specifically prohibiting all proliferation-related
and dual-use exports and reexports to such countries providing a
Presidential waiver if an export is essential to the national interest.
Enactment of this legislation, Mr. Speaker, will require the
Secretary of State to seek support of these antiterrorism controls from
other nations and from the various export control regimes. It will help
to make certain that the same stringent export control regime will be
applied to all terrorist states, including Syria.
During its markup, the committee adopted an amendment that I proposed
providing greater scrutiny and monitoring to the billions of dollars of
dual-use equipment and technology licensed annually for export from our
Nation to the People's Republic of China.
As we learned during the recent debate on the House floor in
providing most-favored-nation to China, we are going to have to pay
greater attention to China's rapid military buildup and modernization
of its Armed Forces.
Enactment of this bill will help to accomplish that objective by
ensuring that our dual-use exports to the People's Republic of China
are not going to be put to use for those purposes by companies
controlled by the Chinese People's Liberation Army.
In sum, this bill not only undertakes the long overdue reform of the
Export Administration Act but also reestablishes our statutes on dual-
use exports and reasserts the prerogatives of this committee over this
important body of law. While it provides greater transparency on U.S.
export control laws and greatly reduces the number of days needed for
issuing export licenses, it also adds controls on countries not
supporting multilateral efforts to counter the proliferation of weapons
of mass destruction.
In short, this is a well balanced bill addressing regional and global
proliferation threats while, at the same
[[Page H7586]]
time, streamlining and modernizing antiquated export control procedures
of the cold war era.
To those Members concerned about the impact of its provisions on
American industry, I would point out that it subjects export controls
to new oversight procedures and gives our exporters an improved appeals
process for controls they believe are unfair.
Accordingly, I urge my colleagues to support this historic
legislation, the Roth bill on export controls, and I again commend him
and the gentleman from Connecticut [Mr. Gejdenson] for their work on
this measure.
Mr. ROTH. Mr. Speaker, I yield myself such time as I may consume to
again thank the gentleman from New York, the chairman of our full
committee, for his strong support of this legislation and for all the
help he has given me in making today possible.
Mr. Speaker, I yield 3 minutes to the gentleman from Nebraska [Mr.
Bereuter] who has worked on this subcommittee with me for many, many
years and I have always appreciated his support.
(Mr. BEREUTER asked and was given permission to revise and extend his
remarks.)
Mr. BEREUTER. Mr. Speaker, this Member rises in strong support of
H.R. 361, the Export Administration Act of 1996. Our current export
licensing framework is grossly out of date--not having been
significantly revised in 17 years. We desperately need to pass this
legislation if Congress is to have any influence over the delicate
balancing act between national security and commercial interests that
the President currently performs under the broad powers of the
International Emergency Economic Powers Act.
First however, this Member would like to congratulate the
distinguished gentleman from Wisconsin [Mr. Roth], chairman of the
International Relations Subcommittee on International Economic Policy
and Trade, for his exceptional work in crafting legislation that not
only revises an out-of-date statutory framework but provides us with a
rational system for export controls that can evolve well during the
21st century. This Member regrets that we are losing Chairman Roth's
excellent stewardship on issues of great importance to American
commercial interests. It has been this Member's pleasure to serve with
Chairman Roth on this subcommittee for the last 14 years. However, this
Member is grateful that Chairman Roth leaves his post with a good,
bipartisan House compromise that the Senate would be wise to consider
and pass.
On March 3, 1795, Congress gave the President authority to permit the
exportation of arms, cannons and military stores in ``cases connected
with the security of the commercial interest of the United States, and
for public purposes only.'' That act was one of the first export
administration acts and no doubt an ancestor to the legislation
currently before us today.
Despite his best efforts during his tenure in Congress to eliminate
red tape and bureaucracy, Chairman Roth presents us with a bill 201
years later that is 202 pages longer than its precursor. That amounts
to a page of legislation for each birthday of this great country.
Obviously, despite that facetious comparisons, Mr. Speaker, the world
is a much more complicated place than it was in 1795, but the
underlying principles for export regulations are the same. Then, we did
not want our enemies to be able to acquire the cannons that could
damage our ships of commerce. Now, for example, we seek to deny them
the precision tools from constructing weapons of mass destruction.
Mr. Speaker, this legislation is not perfect; no compromises are. But
the current export control authority for our Nation is badly in need of
reform. This legislation will importantly reestablish U.S. statutory
authority and eliminate the necessity of the President using overly
broad emergency administrative powers to implement our Nation's export
control laws. While tightening restrictions on dual-use exports to
rogue regimes and terrorist countries, it emphasizes strengthening
multilateral export controls. Also it provides strong incentives for
the President to negotiate with our allies before unilateral controls
are imposed.
Mr. Speaker, this Member would like to again congratulate Chairman
Roth for his hard work on striking an appropriate balance between U.S.
national security and commercial interests. If the Senate wisely
follows his lead and passes this legislation, part of the Roth legacy
will be a rational export control system that is responsive to U.S.
industry while protecting the national security.
{time} 1445
Mr. ROTH. Mr. Speaker, I thank the gentleman from Nebraska [Mr.
Bereuter] for his excellent comments. I want to say I have enjoyed
working with him for the last 14 years on this subcommittee. I
appreciate all his creative thinking in the committee also.
Mr. Speaker, I yield 3 minutes to the gentleman from Illinois [Mr.
Manzullo], vice chairman of our subcommittee.
Mr. MANZULLO. Mr. Speaker, many people are legitimately concerned
about the large U.S. trade deficit, which reached $111 billion in 1995.
But few people know that the U.S. Government maintains barriers to
American exports to willing customers overseas. In 1993, the respected
Institute for International Economics measured this barrier, totaling
up to $40 billion in lost U.S. sales abroad. Even if you use the most
conservative estimate, the current export control system stymies the
creation of 600,000 high-paying, highly skilled jobs.
We have entered a new post-cold-war era where our national security
threats have fundamentally changed from the large Soviet menace to a
select group of smaller national dedicated to developing weapons of
mass destruction and to the promotion of state-sponsored terrorism. We
need a revised export control system that recognizes these new threats
to our national interests while balancing our economic interests. This
bill meets that challenge.
The new Export Administration Act brings more rationality into the
system to provide more predictability and transparency for U.S.
exporters. It emphasizes coordination with other nations, as opposed to
our usual unilateral sanction, ``shoot ourselves in the foot
strategy.''
The new Export Administration Act reduces by almost in half the
number of days allowed for issuing export licenses. As chairman of the
Small Business Exports Subcommittee, I especially know how delays in
the export licensing process can hurt a small exporter. H.R. 361 is
needed so that bureaucrats do not unnecessarily delay an important
sale.
I also want to extend my appreciation to the chairman of the
International Economic Policy and Trade Subcommittee, Mr. Toby Roth of
Wisconsin. For the past few years, we were unable to pass a
comprehensive Export Administration Act reform. This year, the chairman
adopted a different tactic to include the National Security Committee
in the drafting of this legislation.
The results speak for themselves today: H.R. 361 is on the
noncontroversial suspension calendar.
I also want to thank the administration for moving many export
control reforms internally through regulatory changes. Increasing the
MTOP levels on computers to 2,000 to most every country in the world
and 10,000 to our strongest allies was a welcome move because our
competitors, even in Brazil and Taiwan, are making functional
equivalents of these computer systems.
Because of these administrative changes, we do not have to include
these reforms in this legislation. I hope that same spirit of reform
will continue because this legislation provides discretion to the
administration to resolve some of the most contentious issues in export
control reform such as a dual-use definition and foreign availability
criteria.
I urge my colleagues to adopt this landmark job-creating reform and
that the other body act expeditiously on this bill.
Mr. ROTH. Mr. Speaker, I yield 3 minutes to the gentlewoman from
Kansas [Mrs. Meyers], chairman of the Committee on Small Business.
(Mrs. MEYERS of Kansas asked and was given permission to revise and
extend her remarks.)
Mrs. MEYERS of Kansas. Mr. Speaker, I rise in strong support of H.R.
361. I feel that this Congress and the American people owe a debt of
gratitude to chairman Roth for the way he has
[[Page H7587]]
crafted this legislation. In previous Congresses this legislation
foundered in bitter controversy between the national security community
and the business community. Under the leadership of the gentleman from
Wisconsin, the legitimate interest in preventing proliferation of
technology that can be misused has been reconciled with the legitimate
interest in allowing our companies a level playing field with their
foreign competitors. And he has done it in a way that allows this bill
to be considered under suspension of the rules.
The rationale and need for export controls has changed because of the
end of the cold war. Before, we were contending with an adversary with
considerable indigenous industrial and scientific capabilities, but
lagging behind in technical innovation. The Soviets could develop high
technology weapons on their own through their own capabilities plus
espionage, but they were one or two generations behind us. Our goal was
to keep them from getting state-of-the-art technology, but we knew it
was useless to try and keep them from getting older technology.
Before, the key objective of our export controls was to keep the
technology away from the Soviets that could allow them to develop more
accurate missiles or quieter submarines. But we couldn't prevent them
from building subs or rockets, they already knew how to do that. We had
to keep our qualitative advantage that made up for our quantitative
disadvantage, that would have allowed us to prevail in a stand-up fight
and made our deterrent credible. Now, to counter the proliferation
threat from rogue and terrorist nations, our focus has to change. We
want to prevent the irons and Libyas of the world from getting any kind
of missile or weapon of mass destruction. The dangerous countries now
do not have the indigenous capability to produce these weapons; they
have to purchase the necessary technology and know-how. It doesn't
matter if what they build is obsolete in a purely military sense; these
obsolete weapons are still dangerous in terms of their utility for
terrorist purposes. We have to focus our export control resources to
target those outlaw nations specifically, and keep them from getting
the technology necessary to build any weapons of mass destruction.
There are two ways to do this. We can put tougher unilateral controls
on ever type of industrial technology, because even the lower tech
items can still be used to build crude weapons suitable for terrorist
purposes. Or, we can concentrate on uniting the entire industrialized
world to prevent the real threshold technology from getting to the
nations that are truly dangerous. I believe the second approach is the
more useful and effective one, and it is the approach taken in this
legislation.
Finally, the bill's provision allowing import sanctions to be imposed
upon countries that engage in nuclear proliferation puts a real
deterrent to this activity in the hands of the President. It makes it
much more likely that we will be able to threaten a sanction that will
actually hurt the offending country more than it does us.
However, I am afraid that this current language may be too narrow. It
restricts the import sanction to the entities responsible for or most
closely identified with the illegal proliferation. There will be
situations where it would be most effective to target imports that may
not be from the entity that engaged in the proliferation but would
cause the foreign country much much more pain if cut off.
We must remember that any trade sanction we impose will cause some
hardship to Americans, since after all no trade occurs without mutual
benefit. We should allow the administration enough flexibility to pick
an appropriate trade sanction that causes more pain to the offending
foreign country than it does to American citizens. I hope we can
further modify this provision as this bill moves through the
legislative process.
All in all, Mr. Speaker, this bill is vitally needed. I urge its
swift passage.
Mr. ROTH. Mr. Speaker, I yield the balance of my time to the
gentleman from California [Mr. Campbell] who is the newest member of
our subcommittee and by far one of the brightest and most astute.
Mr. GEJDENSON. Mr. Speaker, I yield 2 minutes to the gentleman from
California [Mr. Campbell].
The SPEAKER pro tempore (Mr. Gutknecht). The gentleman from
California [Mr. Campbell] is recognized for 3 minutes.
(Mr. CAMPBELL asked and was given permission to revise and extend his
remarks.)
Mr. CAMPBELL. Mr. Speaker, I thank the gentleman for those overly
generous comments, and I thank the gentleman from Connecticut for his
generous gift of time. I rise in support of the bill.
Mr. Speaker, the bill is essential. I only wish it did more. In this
regard, I agree with my colleague that we are making a good start. It
is my hope that we will do more as the bill moves into conference. But,
Lord knows, it has to be viewed as a first step which would not have
taken place but for the exceptional efforts of our colleague and
chairman from Wisconsin.
There are two points I would like to stress. First of all is
regarding the private right of action which is created in this bill. I
am always very concerned whenever there is a new private right of civil
action created where people can go to a court of law and bring a
lawsuit. That is the case here. Where an enterprise is alleged to be
violating the rules about the diversion of weapons and technology,
private right of action is created.
I think it would have been wiser to require that before that civil
lawsuit be commenced that there be a criminal conviction. The reason is
that if otherwise it is possible that diplomatic efforts to work out a
disagreement can be impeded by the civil lawsuit that is pending. At
the very least, however, the bill did include a provision on an English
rule that the attorney's fees be paid for by the losing side in such
civil litigation, and I think it is essential that that remain.
My second and last point is that the bill should have done more on
encryption and so I will take the remaining minute to say that I am
hopeful that even possibly within this Congress there may be a way to
address encryption, possibly our colleague from Washington State's own
bill on encryption, Mr. White, possibly an amendment as this bill goes
into conference. The administration can do a whole lot on its own
regarding the export of encryption software and hardware. Simply by
reclassifying this a dual-use rather than munition, it would bring its
review process out of the State Department and over to commerce where I
think it would be much more realistic.
The importance of the encryption export is not simply in its own
right as a market for American entrepreneurship and or research and
development, but also this: As more and more computers are being used
in commerce and as we go to virtual banking and international finance,
the ability to encrypt is going to be an essential part of any computer
system you buy. If American computers cannot have embedded in them
reliable encryption, then nobody is going to buy the computer system.
And then we move from a loss of maybe a billion or two to tens of
billions of dollars. Indeed, the computer systems policy project
estimates a $60 billion loss to our country by the year 2000.
Those are two points that should be emphasized as the bill goes to
conference. I conclude with a word of personal appreciation to the
chairman, how much I have enjoyed working with him for 5 years in
several Congresses.
Mr. Speaker, I want to take this opportunity to speak in support of
H.R. 361, the Omnibus Export Administration Act of 1996. In committee,
I offered an amendment to apply the English rule on attorneys' fees to
the private right of action this bill contains. I want to emphasize
that my willingness to vote for this bill is conditioned upon this
provision staying in the bill; if it is removed, but the private right
of action stays, I would have to reconsider my support for this
legislation.
I have also expressed my concerns to Chairman Roth about the
competitive disadvantage provision within the foreign availability
section. I believe that there is a real danger that U.S. companies will
suffer significant disadvantages within CoCom's successor, the new
Wassenaar Arrangement, if the U.S. Government rigorously enforces the
new internationally agreed upon export control lists while its allies
and other nations within Wassenaar rubber stamp their licenses or give
those licenses only cursory reviews.
I want to take time today, however, to discuss an omission from H.R.
361. That issue is
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encryption. It is not a part of H.R. 361, in part, because it is too
controversial and might have killed the last chance that the bill has
for passage during the 104th Congress. But within the category of
export controls, encryption is the most important issue facing us
today, and I believe that Congress would be abdicating its
responsibility by not taking it up during the current session. By
speaking today, I hope to build a record for early consideration of
encryption legislation in the next Congress, or even for consideration
in the remaining days of this Congress.
As data become more available, data become more vulnerable. The more
information is passed along both public and private networks, the
greater is the demand for information security. Financial losses from
system penetrations have increased, and users feel more vulnerable to
interception or corruption of their data. Both companies and
individuals want to avoid the losses and the system shutdowns that
occur when outsiders are able to browse within their data. They view
information as property, and they believe that they have a right to put
as strong a lock on that property as they see fit. I agree with them.
Information must be protected.
Encryption is the ability to scramble communications sent out along
computer networks. There is no restriction on encryption when it is
applied domestically, but under current law, it cannot be exported
except under very limited conditions.
The current export controls prevent U.S. companies from meeting the
market demand for encryption. Our overseas competitors, however, will
meet that demand. Only last month, there were news reports of a new
Nippon Telephone and Telegraph encryption chip, which provides a
strength of encryption unavailable from any U.S. vendor.
This creates a real problem for two of the most successful industries
in the United States today, the computer and software industries.
Because they are of such high quality, U.S. computers and software
dominate the world market and set the international standard. This
results in a significant competitive advantage for both industries and
it has been a major benefit to national security, as militarily useful
products and technologies have spun off to benefit our increasingly
automated weapons systems. That advantage, however, is under serious
challenge. U.S. computers and software cannot continue to be world
leaders if an important aspect of their competitiveness is denied to
them.
It is ill advised to continue the current U.S. Government encryption
policy. A recent Department of Commerce study documented that there are
hundreds of foreign firms that produce encryption products that serve
the market denied to U.S. companies. As a consequence, the current
policy results in handing the encryption market to our trade
competitors. Worse still, however, is the fact that in today's world,
customers tend to buy complete packages for their computer networks and
they want information security to be a part of that package. In 1996,
the market loss for encryption products alone may be estimated in the
billions; but the market for computer and software systems amounts to
hundreds of billions. It is that total systems market, as well, which
is imperiled by a U.S. Government export control policy that refuses to
face the reality of the international marketplace by refusing to allow
encryption to be included as a part of the total network systems
offered by U.S. companies. The Computer Systems Policy Project
estimates that, unless the United States relaxes export controls on
encryption, the U.S. technology industry will lose $60 billion in
revenue and 200,000 jobs by the year 2000.
A company from Silicon Valley, Hewlett-Packard, illustrates the
difficulties encountered by the entire industry. Hewlett-Packard has
developed a number of products that require encryption for their
operation. For example, emerging smart card technology promises to
bring individuals unprecedented access and control over digital
information and assets. Last year 500 million smart cards were issued
and more than 4 billion are expected to be in use by the 2000. With all
that critical information stored on a smart card, the network system
supporting use of the card would require significant encryption
capability. Although the use of this new personal information card is
entirely benign and poses no national security risk, currently, the
restrictions on the export of cryptography make it extremely difficult
to market this product abroad. Such a policy restriction has minimal
benefits and high long-term costs.
The current encryption export control system is both anachronistic
and inefficient. It denies U.S. companies the right to export products
containing encryption that is widely available from foreign vendors,
and those few licenses that are granted take so long in the approval
process that customers who might buy American technology are tempted to
turn to foreign suppliers to satisfy their needs. It makes no sense to
control commercial encryption as though it is a munitions item. It has
been decades since the military was the primary user of encryption. At
the very minimum, encryption control parameters ought to be raised to
the level commercially available from foreign vendors, and encryption
ought to be controlled as a dual-use commercial item rather than a
munitions item. This change alone would replace the current cumbersome
State Department bureaucracy with a Commerce licensing system that is
likely to be more efficient and more responsive to commercial
exigencies while not excluding the role of defense agencies within the
new process. The pending Export Administration Act accomplishes a
similar balance for the items it controls.
The administration has indicated that it is at least considering this
authority transfer. But the last encryption policy change it allowed
took 2 years to execute. Industries as fast-moving as computers and
software cannot afford such glacial change. The administration has to
respond quickly to changed conditions, or the Congress should make the
change for them through the legislative process.
There is no market for the weak encryption that U.S. companies are
allowed to export under current regulations when strong encryption is
widely available from foreign vendors. Nor can U.S. companies follow
the recent proposal of the U.S. Government and force their customers to
escrow the key to their encryption systems with a third party, when
foreign vendors offer the same strength of encryption without any
cumbersome requirements. If such a requirement could be imposed
throughout the world, U.S. companies would suffer no disadvantage. But
that is unlikely to occur.
Congressman White has drafted, and I have cosponsored, legislation
that would begin to address the problems engendered by our current
encryption policy. That legislation would bring our licensing
parameters for encryption up to the levels widely available abroad and
also transfer encryption export licensing authority from the State
Department to Commerce. It is still my hope that this legislation can
be taken up during this session of Congress. Encryption could also be
addressed by the Clinton administration by simply undertaking
regulatory reforms. Those reforms should have been undertaken years
ago, so that U.S. companies would not be facing the competitive
disadvantages that they are today.
Mr. GEJDENSON. Mr. Speaker, I would like to again commend my
colleagues, the gentleman from Wisconsin [Mr. Roth] for his work on
this issue and so many others, having been such a valuable Member of
the Congress. We are truly going to miss him as a legislator and as a
friend. We will not miss him as a friend. We will see him long after
his time in Congress. I commend him for his work. I agree with the
gentleman from California on the encryption issue and others that need
to be dealt with rapidly.
Mr. ROTH. Mr. Speaker, I thank the gentleman for his kind remarks and
I have also enjoyed working with the gentleman from Connecticut [Sam
Gejdenson]. The feeling is mutual.
Mr. HAMILTON. Mr. Speaker, I urge the House to suspend the rules and
pass H.R. 361, the Omnibus Export Administration Act of 1996, as
amended.
communications
I want to commend Congressman Roth, the principal drafter of this
bill, for the excellent work he has done to bring it before the House
today.
This is an extraordinarily complicated measure. Since the end of the
cold war, three previous export administration bills have failed to
pass the House.
Congressman Roth deserves a lot of credit for the fact that H.R. 361
stands a better chance of being approved by the House than its
predecessors.
As Mr. Roth has acknowledged, however, this bill would not be on the
floor today were it not for the creativity and hard work of Congressman
Gejdenson, ranking Democrat on our Economic Policy Subcommittee. Much
of H.R. 361 is based on the bill Mr. Gejdenson drafted, with Mr. Roth's
help, in 1994. No Member of Congress has done more to promote reform of
the U.S. system for controlling dual-use exports than has Mr.
Gejdenson.
Let me also commend the administration and the bipartisan leaderships
of the National Security, Ways and Means, Rules and Judiciary
Committees for their constructive work on this bill. The progress of
this bill so far has been a model of bipartisanship.
a balanced bill
An effective export control system must carefully balance U.S.
national security and economic interests.
This bill strikes a decent balance.
On the national security side, it toughens nonproliferation
sanctions, tightens restrictions on exports to terrorist nations, and
strengthens multilateral nonproliferation regimes.
[[Page H7589]]
On the economic side, it shortens export licensing deadlines, makes
the licensing system more transparent, and gives exporters better
access to administrative and judicial review of licensing decisions.
I am also pleased that the bill includes language protecting U.S.
farmers from economic embargoes. These protections will reassure both
farmers and our trading partners about our commitment to expanding
export markets.
Nobody considers this a perfect bill. In his effort to gain the
support of the National Security Committee, Mr. Roth agreed to make
changes in H.R. 361 that some American exporters opposed. I share the
concerns of these exporters, and I am hopeful that several of the
reforms they favor can be reinstated at a later stage in the
legislative process, to better serve all U.S. national interests.
why we need a bill
Mr. Speaker, this bill needs to move forward today if we are to have
a chance of enacting it this year.
Our dual-use export control system has operated under Executive order
since the old Export Administration Act expired in August 1994.
We need an export administration statute for several reasons.
First, a regulatory system does not provide as sound a basis for
business or policy decisions as would a statute. U.S. exporters and the
U.S. Government will both benefit from the increased predictability and
transparency of a statute.
Second, without a statute we cannot adequately enforce our
antiboycott policies, which help protect Israel from economic pressure.
Third, our current export control system reflects the East-West
security focus of the expired Export Administration Act. H.R. 361 will
give us a system that more closely corresponds to the economic and
security circumstances of the post-cold-war era.
conclusion
Mr. Speaker, export controls impact a wide range of U.S. national
interests. That makes if difficult to draft an Export Administration
Act that fully satisfies all interested parties.
But the bill before us today strikes a good compromise, and after 2
years under Executive order, it is time to put our export control
system on a statutory foundation.
I urge Members to vote to suspend the rules and pass H.R. 361.
Mr. SPENCE. Mr. Speaker, I rise in support of H.R. 361, the Omnibus
Export Administration Act of 1996.
This act would supersede the original Export Administration Act,
which expired in 1994, and is the result of many months of negotiation
and hard work between the International Relations and National Security
Committees. I believe it strikes a responsible balance between the
desire to promote U.S. exports and the need to prevent sensitive
technologies for falling into the wrong hands. I commend my colleagues,
Mr. Gilman, the chairman of the International Relations Committee, and
Mr. Roth, the chairman of the International Economic Policy and Trade
Subcommittee, for their commitment to work cooperatively on this issue.
Since the fall of 1994, the Clinton administration has been operating
under emergency authorities contained in the International Emergency
Economic Powers Act. This piecemeal approach to export control is
neither satisfactory nor prudent and has resulted in poor decisions
with detrimental impact on U.S. national security.
The Export Administration Act accomplishes several important
objectives. For example:
It removes the ad hoc nature of current export control policy
decisionmaking by codifying in statute procedures for determining
whether exports of sensitive dual-use technologies are consistent with
U.S. national security interests. While directing continued efforts to
work with our allies to harmonize their export control policies with
our own, it allows us to control unilaterally the export of critical
items for important national security or foreign policy reasons.
It grants the Secretary of Defense statutory authority to participate
in the formulation and review of multilateral, unilateral, missile
technology, chemical, and biological export control lists. This is a
significant and important increase in the authority of the Secretary of
Defense.
It allows the Department of Defense to specify limitations on how, to
what countries, and to what end-uses controlled items may be exported.
This grants DOD new statutory authority to help ensure that sensitive
technologies do not end up in the wrong hands.
It ensures that the Department of Defense will have the opportunity
to review all export license applications submitted to the Department
of Commerce. This will prevent situations, as has happened in the past,
where the Commerce Department approves the export of a sensitive dual-
use technology with military application without the knowledge of the
Department of Defense.
It establishes a procedural mechanism whereby the Secretary of
Defense can escalate disputes regarding the approval of license
applications to the President for resolution.
It prohibits any item whose export is strictly controlled as a
munition from being placed simultaneously on the less-restrictive list
of dual-use commodities for export.
It properly focuses our export control efforts on stemming the
proliferation of dangerous technologies to potentially hostile regimes
by prohibiting any export that would materially contribute to a weapons
of mass destruction program in a country that is not a member or
adherent to a multilateral export control regimes. And it prohibits the
export of any controlled items to terrorist countries.
Mr. Speaker, the Export Administration Act of 1996 is a balanced
compromise that goes a long way toward updating this country's export
control process in a way that conforms to the new national security
challenges we face today.
I urge my colleagues to join me in support of H.R. 361.
Mr. GEJDENSON. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Wisconsin [Mr. Roth] that the House suspend the rules
and pass the bill, H.R. 361, as amended.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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