[House Report 107-297]
[From the U.S. Government Publishing Office]
107th Congress Rept. 107-297
HOUSE OF REPRESENTATIVES
1st Session Part 1
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EXPORT ADMINISTRATION ACT OF 2001
_______
November 16, 2001.--Ordered to be printed
_______
Mr. Hyde, from the Committee on International Relations, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2581]
[Including cost estimates of the Congressional Budget Office]
The Committee on International Relations, to whom was
referred the bill (H.R. 2581) to provide authority to control
exports, and for other purposes, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.................................................... 1
Background and Purpose........................................... 56
Hearings......................................................... 60
Committee Consideration.......................................... 61
Votes of the Committee........................................... 62
Committee Oversight Findings..................................... 63
New Budget Authority and Tax Expenditures........................ 63
Congressional Budget Office Cost Estimates....................... 63
Performance Goals and Objectives................................. 68
Constitutional Authority Statement............................... 68
Section-by-Section Analysis...................................... 68
New Advisory Committees.......................................... 87
Congressional Accountability Act................................. 87
Federal Mandates................................................. 87
Changes in Existing Law Made by the Bill, as Reported............ 88
Dissenting Views................................................. 221
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Export
Administration Act of 2001''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--GENERAL AUTHORITY
Sec. 101. Commerce Control List.
Sec. 102. Delegation of authority.
Sec. 103. Public information; consultation requirements.
Sec. 104. Right of export.
Sec. 105. Export control advisory committees.
Sec. 106. President's Technology Export Council.
Sec. 107. Prohibition on charging fees.
TITLE II--NATIONAL SECURITY EXPORT CONTROLS
Subtitle A--Authority and Procedures
Sec. 201. Authority for national security export controls.
Sec. 202. National Security Control List.
Sec. 203. Country tiers.
Sec. 204. Incorporated parts and components.
Sec. 205. Petition process for modifying export status.
Subtitle B--Foreign Availability and Mass-Market Status
Sec. 211. Determination of foreign availability and mass-market status.
Sec. 212. Presidential set-aside of foreign availability status
determination.
Sec. 213. Presidential set-aside of mass-market status determination.
Sec. 214. Office of Technology Evaluation.
TITLE III--FOREIGN POLICY EXPORT CONTROLS
Sec. 301. Authority for foreign policy export controls.
Sec. 302. Procedures for imposing controls.
Sec. 303. Criteria for foreign policy export controls.
Sec. 304. Presidential report before imposition of control.
Sec. 305. Imposition of controls.
Sec. 306. Deferral authority.
Sec. 307. Review, renewal, and termination.
Sec. 308. Termination of controls under this title.
Sec. 309. Compliance with international obligations.
Sec. 310. Designation of countries supporting international terrorism.
Sec. 311. Crime control instruments.
Sec. 312. Measures to protect the public health.
Sec. 313. Promotion of safe environments.
TITLE IV--PROCEDURES FOR EXPORT LICENSES AND INTERAGENCY DISPUTE
RESOLUTION
Sec. 401. Export license procedures.
Sec. 402. Interagency dispute resolution process.
TITLE V--INTERNATIONAL ARRANGEMENTS; FOREIGN BOYCOTTS; SANCTIONS; AND
ENFORCEMENT
Sec. 501. International arrangements.
Sec. 502. Foreign boycotts.
Sec. 503. Penalties.
Sec. 504. Missile proliferation control violations.
Sec. 505. Chemical and biological weapons proliferation sanctions.
Sec. 506. Enforcement.
Sec. 507. Administrative procedure.
TITLE VI--EXPORT CONTROL AUTHORITY AND REGULATIONS
Sec. 601. Export control authority and regulations.
Sec. 602. Confidentiality of information.
TITLE VII--EXPORTS OF SATELLITES
Sec. 701. Applicability.
Sec. 702. Export controls on satellites and related items.
Sec. 703. Export license procedures.
Sec. 704. Mandatory State Department review.
Sec. 705. Definitions.
Sec. 706. Conforming amendments.
Sec. 707. Effective date.
Sec. 708. Effect on existing law.
TITLE VIII--MISCELLANEOUS PROVISIONS
Sec. 801. Annual report.
Sec. 802. Relationship to the Arms Export Control Act.
Sec. 803. Enhancement of congressional oversight of nuclear transfers
to North Korea.
Sec. 804. Procedures for consideration of joint resolutions.
Sec. 805. Recommendations of the Judicial Review Commission on Foreign
Asset Control.
Sec. 806. Improvements to the automated export system.
Sec. 807. Technical and conforming amendments.
Sec. 808. Savings provisions.
SEC. 2. DEFINITIONS.
Except as otherwise expressly provided, in this Act:
(1) Affiliate.--The term ``affiliate'' includes both
governmental entities and commercial entities that are
controlled in fact by the government of a country.
(2) Control or controlled.--The terms ``control'' and
``controlled'' mean any requirement, condition, authorization,
or prohibition on the export or reexport of an item.
(3) Control list.--The term ``Control List'' means the
Commerce Control List established under section 101.
(4) Controlled country.--The term ``controlled country''
means a country with respect to which exports are controlled
under section 201 or 301.
(5) Controlled item.--The term ``controlled item'' means an
item the export of which is controlled under this Act.
(6) Country.--The term ``country'' means a sovereign
country or an autonomous customs territory.
(7) Country supporting international terrorism.--The term
``country supporting international terrorism'' means a country
designated by the Secretary of State pursuant to section 310.
(8) Department.--The term ``Department'' means the
Department of Commerce.
(9) Export.--
(A) The term ``export'' means--
(i) an actual shipment, transfer, or
transmission of an item out of the United
States;
(ii) a transfer to any person of an item
either within the United States or outside of
the United States with the knowledge or intent
that the item will be shipped, transferred, or
transmitted to an unauthorized recipient
outside the United States;
(iii) the release of technology to a
foreign national within the United States; or
(iv) a transfer of an item in the United
States to an embassy or affiliate of a country,
which shall be considered an export to that
country.
(B) The term includes a reexport.
(10) Foreign availability status.--The term ``foreign
availability status'' means the status described in section
211(d)(1).
(11) Foreign person.--The term ``foreign person'' means--
(A) an individual who is not--
(i) a United States citizen;
(ii) an alien lawfully admitted for
permanent residence to the United States; or
(iii) a protected individual as defined in
section 274B(a)(3) of the Immigration and
Nationality Act. (8 U.S.C. 1324b(a)(3));
(B) 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
(C) any governmental entity of a foreign country.
(12) Item.--
(A) In general.--The term ``item'' means any good,
technology, or service.
(B) Other definitions.--In this paragraph:
(i) Good.--The term ``good'' means any
article, natural or manmade substance,
material, supply or manufactured product,
including inspection and test equipment,
including source code, and excluding technical
data.
(ii) Technology.--The term ``technology''
means specific information that is necessary
for the development, production, or use of an
item, and takes the form of technical data or
technical assistance.
(iii) Service.--The term ``service'' means
any act of assistance, help, or aid.
(13) Mass-market status.--The term ``mass-market status''
means the status described in section 211(d)(2).
(14) Multilateral export control regime.--The term
``multilateral export control regime'' means an international
agreement or arrangement among two or more countries, including
the United States, a purpose of which is to coordinate national
export control policies of its members regarding certain items.
The term includes regimes such as the Australia Group, the
Wassenaar Arrangement, the Missile Technology Control Regime
(MTCR), and the Nuclear Suppliers' Group Dual Use Arrangement.
(15) National security control list.--The term ``National
Security Control List'' means the list established under
section 202(a).
(16) Person.--The term ``person'' includes--
(A) any individual, or any 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 entity,
including any governmental entity operating as a
business enterprise.
(17) Reexport.--The term ``reexport'' means the shipment,
transfer, transshipment, or diversion of items from one foreign
country to another.
(18) Secretary.--The term ``Secretary'' means the Secretary
of Commerce.
(19) 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 (42 U.S.C. 1331(a)).
(20) United states person.--The term ``United States
person'' means--
(A) any United States citizen, resident, or
national (other than an individual resident outside the
United States who is employed by a person other than a
United States person);
(B) any domestic concern (including any permanent
domestic establishment of any foreign concern); and
(C) 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 prescribed by
the President.
TITLE I--GENERAL AUTHORITY
SEC. 101. COMMERCE CONTROL LIST.
(a) In General.--Under such conditions as the Secretary may impose,
consistent with the provisions of this Act, the Secretary--
(1) shall establish and maintain a Commerce Control List
consisting of items the export of which are subject to
licensing or other authorization or requirement; and
(2) may require any type of license, or other
authorization, including recordkeeping and reporting,
appropriate to the effective and efficient implementation of
this Act with respect to the export of an item on the Control
List or otherwise subject to control under title II or III of
this Act.
(b) Types of License or Other Authorization.--The types of license
or other authorization referred to in subsection (a)(2) include the
following:
(1) Specific exports.--A license that authorizes a specific
export.
(2) Multiple exports.--A license that authorizes multiple
exports in lieu of a license for each export.
(3) Notification in lieu of license.-- A notification in
lieu of a license that authorizes a specific export or multiple
exports subject to the condition that the exporter file with
the Department advance notification of the intent to export in
accordance with regulations prescribed by the Secretary.
(4) License exception.--Authority to export an item on the
Control List without prior license or notification in lieu of a
license.
(c) After-Market Service and Replacement Parts.--A license to
export an item under this Act shall not be required for an exporter to
provide after-market service or replacement parts in order to replace
on a one-for-one basis parts that were in an item that was lawfully
exported from the United States, unless--
(1) the Secretary determines that such license is required
to export such parts; or
(2) the after-market service or replacement parts would
materially enhance the capability of an item which was the
basis for the item being controlled.
(d) Incidental Technology.--A license or other authorization to
export an item under this Act includes authorization to export
technology related to the item, if the level of the technology does not
exceed the minimum necessary to install, repair, maintain, inspect,
operate, or use the item.
SEC. 102. DELEGATION OF AUTHORITY.
(a) In General.--Except as provided in subsection (b) and subject
to the provisions of this Act, the President may delegate the power,
authority, and discretion conferred upon the President by this Act to
such departments, agencies, and officials of the Government as the
President considers appropriate.
(b) Exceptions.--
(1) Delegation to appointees confirmed by senate.--No
authority delegated to the President under this Act may be
delegated by the President 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.
(2) Other limitations.--The President may not delegate or
transfer the President's 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 Act.
SEC. 103. PUBLIC INFORMATION; CONSULTATION REQUIREMENTS.
(a) Public Information.--The Secretary shall keep the public fully
informed of changes in export control policy and procedures instituted
in conformity with this Act.
(b) Consultation With Persons Affected.--The Secretary shall
consult regularly with representatives of a broad spectrum of
enterprises, labor organizations, nonproliferation and national
security experts, 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 or mass-market status of controlled
items.
SEC. 104. RIGHT OF EXPORT.
No license or other authorization to export may be required under
this Act, or under regulations issued under this Act, except to carry
out the provisions of this Act.
SEC. 105. EXPORT CONTROL ADVISORY COMMITTEES.
(a) Appointment.--Upon the Secretary's 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
Act or being considered for such controls, the Secretary may appoint
export control advisory committees with respect to any such items. Each
such committee shall consist of representatives of United States
industry and Government officials, including officials from the
Departments of Commerce, Defense, and State, and other appropriate
departments and agencies of the Government. The Secretary shall permit
the widest possible participation by the business community on the
export control advisory committees.
(b) Functions.--
(1) In general.--Export control advisory committees
appointed under subsection (a) shall advise and assist the
Secretary, and any other department, agency, or official of the
Government carrying out functions under this Act, on actions
(including all aspects of controls imposed or proposed)
designed to carry out the provisions of this Act concerning the
items with respect to which such export control advisory
committees were appointed.
(2) Other consultations.--Nothing in paragraph (1) 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 control advisory committee. Members of the public shall
be given a reasonable opportunity, pursuant to regulations
prescribed by the Secretary, to present information to such
committees.
(c) Reimbursement of Expenses.--Upon the request of any member of
any export control advisory committee appointed under subsection (a),
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.
(d) Chairperson.--Each export control advisory committee appointed
under subsection (a) 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
section. 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.
(e) Access to Information.--To facilitate the work of the export
control advisory committees appointed under subsection (a), the
Secretary, in conjunction with other departments and agencies
participating in the administration of this Act, shall disclose to each
such committee adequate information, consistent with national security
and intelligence sources and methods, 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 control 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.
SEC. 106. PRESIDENT'S TECHNOLOGY EXPORT COUNCIL.
The President may establish a President's Technology Export Council
to advise the President on the implementation, operation, and
effectiveness of this Act.
SEC. 107. PROHIBITION ON CHARGING FEES.
No fee may be charged in connection with the submission or
processing of an application for an export license under this Act.
TITLE II--NATIONAL SECURITY EXPORT CONTROLS
Subtitle A--Authority and Procedures
SEC. 201. AUTHORITY FOR NATIONAL SECURITY EXPORT CONTROLS.
(a) Authority.--
(1) In general.--In order to carry out the purposes set
forth in subsection (b), the President may, in accordance with
the provisions of this Act, prohibit, curtail, or require a
license, or other authorization for the export of any item
subject to the jurisdiction of the United States or exported by
any person subject to the jurisdiction of the United States.
The President may also require recordkeeping and reporting with
respect to the export of such item.
(2) Exercise of authority.--The authority contained in this
subsection shall be exercised by the Secretary, in consultation
with the Secretary of Defense, the Secretary of State, the
intelligence agencies, and the heads of such other departments
and agencies as the Secretary considers appropriate.
(b) Purposes.--The purposes of national security export controls
are the following:
(1) To restrict the export of items that would contribute
to the military potential of countries so as to prove
detrimental to the national security of the United States, its
allies, or countries sharing common strategic objectives with
the United States.
(2) 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,
key-enabling technologies, 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.
(3) To deter acts of international terrorism.
(c) End Use and End User Controls.--
(1) General authority.--(A) Notwithstanding any other
provision of this Act, controls may be imposed, based on the
end use or end user, on the export of any item, that could
contribute to the proliferation of weapons of mass destruction
or the means to deliver them.
(B) The President shall seek to strengthen multilateral
cooperation to identify more effectively end users of concern.
(C) The Secretary shall establish and maintain a database
listing end users of concern and develop a procedure by which
exporters can utilize such database to screen prospective end
users.
(2) Presumption of denial of certain licenses.--
Notwithstanding any other provision of this Act, there shall be
a presumption of denial for the export of an item if the
Secretary, with the concurrence of the Secretary of Defense and
the Secretary of State, determines that there is a significant
risk that--
(A) the end user designated to receive such item is
involved in a program or activity for the design,
development, manufacture, stockpiling, testing, or
other acquisition of a weapon of mass destruction or
the means to deliver such a weapon and is in a country
that is not an adherent to a multilateral export
control regime controlling such weapon or means of
delivery, unless the Secretary, with the concurrence of
the Secretary of Defense and the Secretary of State,
and in consultation with the intelligence agencies and
the head of any other department or agency of the
United States that the Secretary considers appropriate,
determines that such export would not make a material
contribution to such program or activity; or
(B) the export of such item would otherwise
contribute to the military capabilities of a country so
as to undermine regional stability or otherwise prove
detrimental to the national security of the United
States, a NATO ally, or major non-NATO ally.
(3) Definition.--For purposes of this subsection, an
``adherent to a multilateral export control regime'' is--
(A) a country that is a member of a multilateral
export control regime;
(B) a country that, pursuant to an international
understanding to which the United States is a party,
controls exports in accordance with relevant criteria
and standards of a multilateral export control regime;
or
(C) a major non-NATO ally that, pursuant to its
national legislation, controls exports in accordance
with such criteria and standards.
(d) Enhanced Control.--
(1) In general.--Notwithstanding any other provision of
this title, the President may determine that applying the
provisions of section 204 or 211 with respect to an item on the
National Security Control List could constitute a threat to the
national security of the United States and that such item
requires enhanced control, including the requirement for a
license for such item. If the President determines that
enhanced control should apply to such item, the item may be
excluded from the provisions of sections 204 or 211, or both,
until such time as the President determines that enhanced
control should no longer apply to such item.
(2) Control of items.--Notwithstanding any other provision
of this Act, the President may identify items to be included on
the National Security Control List, and any such item shall be
included on that list.
(3) Nondelegation.--The President may not delegate the
authority provided under paragraphs (1) and (2).
(4) Report to Congress.--The President shall promptly
report any determination described in paragraph (1) or any
items included on the National Security Control List under
paragraph (2), along with the specific reasons for that
determination or inclusion (as the case may be), to the
Committee on International Relations of the House of
Representatives and the Committee on Banking, Housing, and
Urban Affairs of the Senate.
(e) Presumption of Denial on Certain Licenses.--
(1) Presumption.--Notwithstanding any other provision of
law, when a license is required for export to any country of
any item on the National Security Control List for any reason
specified in subsection (b), there shall be a presumption of
denial for the export of such item if there is a significant
risk that--
(A) such item would contribute to the nuclear,
chemical, or biological weapons capabilities of such
country or the capabilities of such country to deliver
such weapons;
(B) such item would otherwise contribute to the
military capabilities of such country so as to
undermine regional stability or otherwise prove
detrimental to the national security of the United
States, a NATO ally, or major non-NATO ally;
(C) such item would likely be used or diverted to a
use or destination not authorized by the license or
United States policy; or
(D) the export of such item would otherwise
materially and adversely affect the national security
interests of the United States.
(2) Exception.--Paragraph (1) shall not apply to the export
of an item to a country that is an adherent to a multilateral
export control regime controlling the export of such item.
(3) Definition.--For purposes of this subsection, an
``adherent to a multilateral export control regime'' is--
(A) a country that is a member of a multilateral
export control regime;
(B) a country that, pursuant to an international
understanding to which the United States is a party,
controls exports in accordance with relevant criteria
and standards of a multilateral export control regime;
or
(C) a major non-NATO ally that, pursuant to its
national legislation, controls exports in accordance
with such criteria and standards.
SEC. 202. NATIONAL SECURITY CONTROL LIST.
(a) Establishment of List.--
(1) Establishment.--The Secretary shall establish and
maintain a National Security Control List, as part of the
Control List.
(2) Contents.--The National Security Control List shall be
composed of a list of items the export of which is controlled
for national security purposes under this title.
(3) Identification of items for national security control
list.--The Secretary, with the concurrence of the Secretary of
Defense and the Secretary of State and in consultation with the
head of any other department or agency of the United States
that the Secretary considers appropriate, shall identify the
items to be included on the National Security Control List,
except that the National Security Control List shall, on the
date of enactment of this Act, include all of the items on the
Commerce Control List controlled on the day before the date of
enactment of this Act to protect the national security of the
United States, to prevent the proliferation of weapons of mass
destruction and the means to deliver them, and to deter acts of
international terrorism. The Secretary shall review on a
continuing basis and, with the concurrence of the Secretary of
Defense and the Secretary of State and in consultation with the
head of any other department or agency of the United States
that the Secretary considers appropriate, adjust the National
Security Control List to add items that require control under
this section and to remove items that no longer warrant control
under this section.
(b) Risk Assessment.--
(1) Requirement.--In establishing and maintaining the
National Security Control List, the risk factors set forth in
paragraph (2) shall be considered, weighing national security
concerns and economic costs.
(2) Risk factors.--The risk factors referred to in
paragraph (1), with respect to each item, are as follows:
(A) The characteristics of the item.
(B) The threat, if any, to the United States or the
national security interest of the United States from
the misuse or diversion of the item.
(C) The effectiveness of controlling the item for
national security purposes of the United States, taking
into account mass-market status, foreign availability,
and other relevant factors.
(D) The threat to the national security interests
of the United States if the item is not controlled.
(E) Any other appropriate risk factors.
(c) Report on Control List.--Not later than 90 days after the date
of enactment of this Act, the Secretary shall submit a report to
Congress which lists all items on the Commerce Control List controlled
on the day before the date of enactment of this Act to protect the
national security of the United States, to prevent the proliferation of
weapons of mass destruction and the means to deliver them, and to deter
acts of international terrorism, not included on the National Security
Control List pursuant to the provisions of this Act.
SEC. 203. COUNTRY TIERS.
(a) In General.--
(1) Establishment and assignment.--In administering export
controls for national security purposes under this title, the
President shall, not later than 120 days after the date of
enactment of this Act--
(A) establish and maintain a country tiering system
in accordance with subsection (b); and
(B) based on the assessments required under
subsection (c), assign each country to an appropriate
tier for each item or group of items the export of
which is controlled for national security purposes
under this title.
(2) Consultation.--The establishment and assignment of
country tiers under this section shall be made after
consultation with the Secretary, the Secretary of Defense, the
Secretary of State, the intelligence agencies, and the heads of
such other departments and agencies as the President considers
appropriate.
(3) Redetermination and review of assignments.--The
President may redetermine the assignment of a country to a
particular tier at any time and shall review and, as the
President considers appropriate, reassign country tiers on an
on-going basis. The Secretary shall provide notice of any such
reassignment to the Committee on Banking, Housing, and Urban
Affairs of the Senate and the Committee on International
Relations of the House of Representatives.
(4) Effective date of tier assignment.-- An assignment of a
country to a particular tier shall take effect on the date on
which notice of the assignment is published in the Federal
Register.
(b) Tiers.--
(1) In general.--The President shall establish a country
tiering system consisting of not less than 3 tiers for purposes
of this section.
(2) Range.--Countries that represent the lowest risk of
diversion or misuse of an item on the National Security Control
List shall be assigned to the lowest tier. Countries that
represent the highest risk of diversion or misuse of an item on
the National Security Control List shall be assigned to the
highest tier.
(3) Other countries.--Countries that fall between the
lowest and highest risk to the national security interest of
the United States with respect to the risk of diversion or
misuse of an item on the National Security Control List shall
be assigned to a tier other than the lowest or highest tier,
based on the assessments required under subsection (c).
(c) Assessments.--The President shall make an assessment of each
country in assigning a country tier taking into consideration risk
factors that include the following:
(1) The present and potential relationship of the country
with the United States.
(2) The present and potential relationship of the country
with countries friendly to the United States and with countries
hostile to the United States.
(3) The country's goals, capabilities, and intentions
regarding chemical, biological, and nuclear weapons and the
country's membership in or adherence to, and level of
compliance with, relevant multilateral export control regimes.
(4) The country's capabilities regarding missile systems
and the country's membership in or adherence to, and level of
compliance with, relevant multilateral export control regimes.
(5) Whether the country, if a NATO or major non-NATO ally
with whom the United States has entered into a free trade
agreement as of January 1, 1986, controls exports in accordance
with the criteria and standards of a multilateral export
control regime.
(6) The country's other military capabilities and the
potential threat posed by the country to the United States or
its allies.
(7) The effectiveness of the country's export control
system.
(8) The level of the country's cooperation with United
States export control enforcement and other efforts.
(9) The risk of export diversion by the country to a higher
tier country.
(10) The designation of the country as a country supporting
international terrorism under section 310.
(11) The extent to which the country, pursuant to its laws,
regulations, and practices, controls items consistent with the
criteria and standards of relevant multilateral export control
regimes.
(d) Tier Application.--The country tiering system shall be used in
the determination of license requirements pursuant to section
201(a)(1).
SEC. 204. INCORPORATED PARTS AND COMPONENTS.
(a) Export of Items Containing Controlled Parts and Components.--
Controls may not be imposed under this title or any other provision of
law on an item solely because the item contains parts or components
subject to export controls under this title, if the parts or
components--
(1) are essential to the functioning of the item,
(2) are customarily included in sales of the item in
countries other than controlled countries, and
(3) comprise 25 percent or less of the total value of the
item,
unless the item itself, if exported, would by virtue of the functional
characteristics of the item 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, or unless failure to control the item would be contrary
to the provisions of section 201(c), section 201(d), or section 309 of
this Act.
(b) Reexports of Foreign-Made Items Incorporating United States
Controlled Content.--
(1) In general.--No authority or permission may be required
under this title to reexport to a country an item that is
produced in a country other than the United States and
incorporates parts or components that are subject to the
jurisdiction of the United States, if the value of the
controlled United States content of the item produced in such
other country is 25 percent or less of the total value of the
item; except that in the case of reexports of an item to a
country designated as a country supporting international
terrorism pursuant to section 310, controls may be maintained
if the value of the controlled United States content is more
than 10 percent of the total value of the item.
(2) Definition of controlled united states content.--For
purposes of this paragraph, the term ``controlled United States
content'' of an item means those parts or components that--
(A) are subject to the jurisdiction of the United
States;
(B) are incorporated into the item; and
(C) would, at the time of the reexport, require a
license under this title if exported from the United
States to a country to which the item is to be
reexported.
SEC. 205. PETITION PROCESS FOR MODIFYING EXPORT STATUS.
(a) Establishment.--The Secretary shall establish a process for
interested persons to petition the Secretary to change the status of an
item on the National Security Control List.
(b) Evaluations and Determinations.--Evaluations and determinations
with respect to a petition filed pursuant to this section shall be made
in accordance with section 202.
Subtitle B--Foreign Availability and Mass-Market Status
SEC. 211. DETERMINATION OF FOREIGN AVAILABILITY AND MASS-MARKET STATUS.
(a) In General.--The Secretary shall--
(1) on a continuing basis,
(2) upon a request from the Office of Technology Evaluation
established pursuant to section 214, or
(3) upon receipt of a petition filed by an interested
person,
review and determine the foreign availability and the mass-market
status of any item the export of which is controlled under this title.
(b) Petition and Consultation.--
(1) In general.--The Secretary shall establish a process
for an interested person to petition the Secretary for a
determination that an item has a foreign availability or mass-
market status. In evaluating and making a determination with
respect to a petition filed under this section, the Secretary
shall consult with the Secretary of Defense, the Secretary of
State, and the heads of other appropriate Government agencies
and with the Office of Technology Evaluation.
(2) Time for making determination.--The Secretary shall,
within 6 months after receiving a petition described in
subsection (a)(3), determine whether the item that is the
subject of the petition has foreign availability or mass-market
status and shall notify the petitioner of the determination.
(c) Result of Determination.--In any case in which the Secretary
determines, in accordance with procedures and criteria which the
Secretary shall by regulation establish, that an item described in
subsection (a) has--
(1) a foreign availability status, or
(2) a mass-market status,
the Secretary shall notify the President (and other appropriate
departments and agencies) and publish the notice of the determination
in the Federal Register. The Secretary's determination shall become
final 30 days after the date the notice is published, the item shall be
removed from the National Security Control List, and a license or other
authorization shall not be required under this title with respect to
the item, unless the President makes a determination described in
section 212 or 213, or takes action under section 309, with respect to
the item in that 30-day period.
(d) Criteria for Determining Foreign Availability and Mass-Market
Status.--
(1) Foreign availability status.--The Secretary shall
determine that an item has foreign availability status under
this subtitle, if the item (or a substantially identical or
directly competitive item)--
(A) is available to controlled countries from
sources outside the United States, including countries
that participate with the United States in multilateral
export controls;
(B) can be acquired at a price that is not
excessive when compared to the price at which a
controlled country could acquire such item from sources
within the United States in the absence of export
controls; and
(C) is available in sufficient quantity so that the
requirement of a license or other authorization with
respect to the export of such item is or would be
ineffective.
(2) Mass-market status.--
(A) In general.--In determining whether an item has
mass-market status under this subtitle, the Secretary
shall consider the following criteria with respect to
the item (or a substantially identical or directly
competitive item):
(i) The production and availability for
sale in a large volume to multiple potential
purchasers.
(ii) The widespread distribution through
normal commercial channels, such as retail
stores, direct marketing catalogues, electronic
commerce, and other channels.
(iii) The conduciveness to shipment and
delivery by generally accepted commercial means
of transport.
(iv) The use for the item's normal intended
purpose without substantial and specialized
service provided by the manufacturer,
distributor, or other third party.
(B) Determination by secretary.--If the Secretary
finds that the item (or a substantially identical or
directly competitive item) meets the criteria set forth
in subparagraph (A), the Secretary shall determine that
the item has mass-market status.
(3) Special rules.--For purposes of this subtitle--
(A) Substantially identical item.--The
determination of whether an item in relation to another
item is a substantially identical item shall include a
fair assessment of end uses, and the properties,
nature, and quality of the item.
(B) Directly competitive item.--The determination
of whether an item in relation to another item is a
directly competitive item shall include a fair
assessment of whether the item, although not
substantially identical in its intrinsic or inherent
characteristics, is substantially equivalent for
commercial purposes and may be adapted for
substantially the same uses.
(C) Exception.--An item is not a directly
competitive item or a substantially identical item in
relation to a controlled item if the item is not of
comparable quality to the controlled item with respect
to characteristics that resulted in the export of the
item being controlled.
SEC. 212. PRESIDENTIAL SET-ASIDE OF FOREIGN AVAILABILITY STATUS
DETERMINATION.
(a) Criteria for Presidential Set-Aside.--
(1) General criteria.--
(A) In general.--If the President determines that--
(i) decontrolling or failing to control an
item constitutes a threat to the national
security of the United States, and export
controls on the item would advance the national
security interests of the United States,
(ii) there is a high probability that the
foreign availability of an item will be
eliminated through international negotiations
within a reasonable period of time taking into
account the characteristics of the item, or
(iii) United States controls on the item
have been imposed under section 309,
the President may set aside the Secretary's
determination of foreign availability status with
respect to the item.
(B) Nondelegation.--The President may not delegate
the authority provided for in this paragraph.
(2) Report to congress.--The President shall promptly--
(A) report any set-aside determination described in
paragraph (1), along with the specific reasons for the
determination, to the Committee on Banking, Housing,
and Urban Affairs of the Senate and the Committee on
International Relations of the House of
Representatives; and
(B) publish the determination in the Federal
Register.
(b) Presidential Action in Case of Set-Aside.--
(1) In general.--
(A) Negotiations.--In any case in which export
controls are maintained on an item because the
President has made a determination under subsection
(a), the President shall actively pursue negotiations
with the governments of the appropriate foreign
countries for the purpose of eliminating such
availability.
(B) Report to congress.--Not later than the date
the President begins negotiations, the President shall
notify in writing the Committee on Banking, Housing,
and Urban Affairs of the Senate and the Committee on
International Relations of the House of Representatives
that the President has begun such negotiations and why
the President believes it is important to the national
security that export controls on the item involved be
maintained.
(2) Periodic review of determination.--The President shall
review a determination described in subsection (a) at least
every 6 months. Promptly after each review is completed, the
Secretary shall submit to the committees of Congress referred
to in paragraph (1)(B) a report on the results of the review,
together with the status of international negotiations to
eliminate the foreign availability of the item.
(3) Expiration of presidential set-aside.--A determination
by the President described in subsection (a)(1)(A) (i) or (ii)
shall cease to apply with respect to an item on the earlier
of--
(A) the date that is 6 months after the date on
which the determination is made under subsection (a),
if the President has not commenced international
negotiations to eliminate the foreign availability of
the item within that 6-month period;
(B) the date on which the negotiations described in
paragraph (1) have terminated without achieving an
agreement to eliminate foreign availability;
(C) the date on which the President determines that
there is not a high probability of eliminating foreign
availability of the item through negotiation; or
(D) the date that is 18 months after the date on
which the determination described in subsection
(a)(1)(A) (i) or (ii) is made if the President has been
unable to achieve an agreement to eliminate foreign
availability within that 18-month period.
(4) Action on expiration of presidential set-aside.--Upon
the expiration of a Presidential set-aside under paragraph (3)
with respect to an item, the Secretary shall not require a
license or other authorization to export the item.
SEC. 213. PRESIDENTIAL SET-ASIDE OF MASS-MARKET STATUS DETERMINATION.
(a) Criteria for Presidential Set-Aside.--
(1) General criteria.--If the President determines that--
(A)(i) decontrolling or failing to control an item
constitutes a serious threat to the national security
of the United States, and
(ii) export controls on the item would advance the
national security interests of the United States, or
(B) United States controls on the item have been
imposed under section 309,
the President may set aside the Secretary's determination of
mass-market status with respect to the item.
(2) Nondelegation.--The President may not delegate the
authority provided for in this subsection.
(b) Presidential Action in Case of Set-Aside.--
(1) In general.--In any case in which export controls are
maintained on an item because the President has made a
determination under subsection (a), the President shall
promptly report the determination, along with the specific
reasons for the determination, to the Committee on Banking,
Housing, and Urban Affairs of the Senate and the Committee on
International Relations of the House of Representatives, and
shall publish notice of the determination in the Federal
Register not later than 30 days after the Secretary publishes
notice of the Secretary's determination that an item has mass-
market status.
(2) Periodic review of determination.--The President shall
review a determination made under subsection (a) at least every
6 months. Promptly after each review is completed, the
Secretary shall submit a report on the results of the review to
the Committee on Banking, Housing, and Urban Affairs of the
Senate and the Committee on International Relations of the
House of Representatives.
SEC. 214. OFFICE OF TECHNOLOGY EVALUATION.
(a) In General.--
(1) Establishment of office.--The Secretary shall establish
in the Department of Commerce an Office of Technology
Evaluation (in this section referred to as the ``Office''),
which shall be under the direction of the Secretary. The Office
shall be responsible for gathering, coordinating, and analyzing
all the necessary information in order for the Secretary to
make determinations of foreign availability and mass-market
status under this Act.
(2) Staff.--
(A) In general.--The Secretary shall ensure that
the Office include persons to carry out the
responsibilities set forth in subsection (b) of this
section that have training, expertise, and experience
in--
(i) economic analysis;
(ii) the defense industrial base;
(iii) technological developments; and
(iv) national security and foreign policy
export controls.
(B) Detailees.--In addition to employees of the
Department of Commerce, the Secretary may accept on
nonreimbursable detail to the Office, employees of the
Departments of Defense, State, and Energy and other
departments and agencies as appropriate.
(b) Responsibilities.--The Office shall be responsible for--
(1) conducting foreign availability assessments to
determine whether a controlled item is available to controlled
countries and whether requiring a license, or denial of a
license for the export of such item, is or would be
ineffective;
(2) conducting mass-market assessments to determine whether
a controlled item is available to controlled countries because
of the mass-market status of the item;
(3) monitoring and evaluating worldwide technological
developments in industry sectors critical to the national
security interests of the United States to determine foreign
availability and mass-market status of controlled items;
(4) monitoring and evaluating multilateral export control
regimes and foreign government export control policies and
practices that affect the national security interests of the
United States;
(5) conducting assessments of United States industrial
sectors critical to the United States defense industrial base
and how the sectors are affected by technological developments,
technology transfers, and foreign competition; and
(6) conducting assessments of the impact of United States
export control policies on--
(A) United States industrial sectors critical to
the national security interests of the United States;
and
(B) the United States economy in general.
(c) Reports to Congress.--The Secretary shall make available to the
Committee on International Relations of the House of Representatives
and the Committee on Banking, Housing, and Urban Affairs of the Senate
as part of the Secretary's annual report required under section 701
information on the operations of the Office, and on improvements in the
Government's ability to assess foreign availability and mass-market
status, during the fiscal year preceding the report, including
information on the training of personnel, and the use of Commercial
Service Officers of the United States and Foreign Commercial Service to
assist in making determinations. The information shall also include a
description of determinations made under this Act during the preceding
fiscal year that foreign availability or mass-market status did or did
not exist (as the case may be), together with an explanation of the
determinations.
(d) 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, consistent with the need to
protect intelligence sources and methods, furnish information to the
Office concerning foreign availability and the mass-market status of
items subject to export controls under this Act.
TITLE III--FOREIGN POLICY EXPORT CONTROLS
SEC. 301. AUTHORITY FOR FOREIGN POLICY EXPORT CONTROLS.
(a) Authority.--
(1) In general.--In order to carry out the purposes set
forth in subsection (b), the President may, in accordance with
the provisions of this Act, prohibit, curtail, or require a
license, other authorization, recordkeeping, or reporting for,
the export of any item subject to the jurisdiction of the
United States or exported by any person subject to the
jurisdiction of the United States.
(2) Exercise of authority.--The authority contained in this
subsection shall be exercised by the Secretary, in consultation
with the Secretary of State and such other departments and
agencies as the Secretary considers appropriate.
(b) Purposes.--The purposes of foreign policy export controls are
the following:
(1) To promote the foreign policy objectives of the United
States, consistent with the purposes of this section and the
provisions of this Act.
(2) To promote international peace, stability, and respect
for fundamental human rights.
(3) 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.
(4) To control the export of test articles intended for
clinical investigation involving human subjects so as to foster
public health and safety and to prevent injury to the foreign
policy of the United States as well as to the credibility of
the United States as a responsible trading partner.
(5) To control the export of goods and substances which are
banned, severely restricted, highly regulated, or never
regulated for use in the United States in order to foster
public health and safety and to prevent injury to the foreign
policy of the United States as well as to the credibility of
the United States as a responsible trading partner.
(c) Foreign Products.--No authority or permission may be required
under this title to reexport to a country an item that is produced in a
country other than the United States and incorporates parts or
components that are subject to the jurisdiction of the United States,
except that in the case of reexports of an item to a country designated
as a country supporting international terrorism pursuant to section
310, controls may be maintained if the value of the controlled United
States content is more than 10 percent of the value of the item.
(d) Contract Sanctity.--
(1) In general.--The President may not prohibit the export
of any item under this title if that item is to be exported--
(A) in performance of a binding contract,
agreement, or other contractual commitment entered into
before the earlier of the date on which the President
publishes in the Federal Register pursuant to section
302(a) a notice of intent to impose or implement an
export control on that item or the date on which the
President reports to Congress the President's intention
to impose an export control on that item under this
title; or
(B) under a license or other authorization issued
under this Act before the earlier of the date on which
the export control is imposed, the date on which the
President publishes in the Federal Register pursuant to
section 302(a) a notice of intent to impose or
implement an export control on that item, or the date
on which the President reports to Congress the
President's intention to impose an export control on
that item under this title.
(2) Exception.--The prohibition contained in paragraph (1)
shall not apply in any case in which the President determines
and certifies to the Committee on Banking, Housing, and Urban
Affairs of the Senate and the Committee on International
Relations of the House of Representatives that--
(A) there is a serious threat to a foreign policy
interest of the United States;
(B) the prohibition of exports under each binding
contract, agreement, commitment, license, or
authorization will be instrumental in remedying the
situation posing the serious threat; and
(C) the export controls will be in effect only as
long as the serious threat exists.
SEC. 302. PROCEDURES FOR IMPOSING CONTROLS.
(a) Notice.--
(1) Intent to impose foreign policy export control.--Except
as provided in section 306, not later than 45 days before
imposing or implementing an export control under this title,
the President shall publish in the Federal Register--
(A) a notice of intent to do so; and
(B) provide for a period of not less than 30 days
for any interested person to submit comments on the
export control proposed under this title.
(2) Purposes of notice.--The purposes of the notice are--
(A) to provide an opportunity for the formulation
of an effective export control policy under this title
that advances United States economic and foreign policy
interests; and
(B) to provide an opportunity for negotiations to
achieve the purposes set forth in section 301(b).
(b) Negotiations.--During the 45-day period that begins on the date
of notice described in subsection (a), the President may negotiate with
the government of the foreign country against which the export control
is proposed in order to resolve the reasons underlying the proposed
export control.
(c) Consultation.--
(1) Requirement.--The President shall consult with the
Committee on Banking, Housing, and Urban Affairs of the Senate
and the Committee on International Relations of the House of
Representatives regarding any export control proposed under
this title and the efforts to achieve or increase multilateral
cooperation on the issues or problems underlying the proposed
export control.
(2) Classified consultation.--The consultations described
in paragraph (1) may be conducted on a classified basis if the
Secretary considers it necessary.
SEC. 303. CRITERIA FOR FOREIGN POLICY EXPORT CONTROLS.
Each export control imposed by the President under this title
shall--
(1) have clearly stated and specific United States foreign
policy objectives;
(2) have objective standards for evaluating the success or
failure of the export control;
(3) include an assessment by the President that--
(A) the export control is likely to achieve such
objectives and the expected time for achieving the
objectives; and
(B) the achievement of the objectives of the export
control outweighs any potential costs of the export
control to other United States economic, foreign
policy, humanitarian, or national security interests;
(4) be targeted narrowly; and
(5) seek to minimize any adverse impact on the humanitarian
activities of United States and foreign nongovernmental
organizations in the country subject to the export control.
SEC. 304. PRESIDENTIAL REPORT BEFORE IMPOSITION OF CONTROL.
(a) Requirement.--Before imposing an export control under this
title, the President shall submit to the Committee on Banking, Housing,
and Urban Affairs of the Senate and the Committee on International
Relations of the House of Representatives a report on the proposed
export control. The report may be provided on a classified basis if the
Secretary considers it necessary.
(b) Content.--The report shall contain a description and assessment
of each of the criteria described in section 303. In addition, the
report shall contain a description and assessment of--
(1) any diplomatic and other steps that the United States
has taken to accomplish the intended objective of the proposed
export control;
(2) unilateral export controls imposed, and other measures
taken, by other countries to achieve the intended objective of
the proposed export control;
(3) the likelihood of multilateral adoption of comparable
export controls;
(4) alternative measures to promote the same objectives and
the likelihood of their potential success;
(5) any United States obligations under international trade
agreements, treaties, or other international arrangements, with
which the proposed export control may conflict;
(6) the likelihood that the proposed export control could
lead to retaliation against United States interests;
(7) the likely economic impact of the proposed export
control on the United States economy, United States
international trade and investment, and United States
agricultural interests, commercial interests, and employment;
and
(8) whether the objectives of the proposed export control
outweighs any likely costs to United States economic, foreign
policy, humanitarian, or national security interests, including
any potential harm to the United States agricultural and
business firms and to the international reputation of the
United States as a reliable supplier of goods, services, or
technology.
SEC. 305. IMPOSITION OF CONTROLS.
The President may impose an export control under this title after
the submission of the report required under section 304 and publication
in the Federal Register of a notice of the imposition of the export
control.
SEC. 306. DEFERRAL AUTHORITY.
(a) Authority.--The President may defer compliance with any
requirement contained in section 302(a), 304, or 305 in the case of a
proposed export control if--
(1) the President determines that a deferral of compliance
with the requirement is in the national interest of the United
States; and
(2) the requirement is satisfied not later than 60 days
after the date on which the export control is imposed under
this title.
(b) Termination of Control.--An export control with respect to
which a deferral has been made under subsection (a) shall terminate 60
days after the date the export control is imposed unless all
requirements have been satisfied before the expiration of that 60-day
period.
SEC. 307. REVIEW, RENEWAL, AND TERMINATION.
(a) Renewal and Termination.--
(1) In general.--Any export control imposed under this
title shall terminate on March 31 of each renewal year unless
the President renews the export control on or before such date.
For purposes of this section, the term ``renewal year'' means
2003 and every 2 years thereafter.
(2) Exception.--This section shall not apply to an export
control imposed under this title that--
(A) is required by law;
(B) is targeted against any country designated as a
country supporting international terrorism pursuant to
section 310; or
(C) has been in effect for less than 1 year as of
February 1 of a renewal year.
(b) Review.--
(1) In general.--Not later than February 1 of each renewal
year, the President shall review all export controls in effect
under this title.
(2) Consultation.--
(A) Requirement.--Before completing a review under
paragraph (1), the President shall consult with the
Committee on Banking, Housing, and Urban Affairs of the
Senate and the Committee on International Relations of
the House of Representative regarding each export
control that is being reviewed.
(B) Classified consultation.--The consultations may
be conducted on a classified basis if the Secretary
considers it necessary.
(3) Public comment.--In conducting the review of each
export control under paragraph (1), the President shall provide
a period of not less than 30 days for any interested person to
submit comments on renewal of the export control. The President
shall publish notice of the opportunity for public comment in
the Federal Register not less than 45 days before the review is
required to be completed.
(c) Report to Congress.--
(1) Requirement.--Before renewing an export control imposed
under this title, the President shall submit to the committees
of Congress referred to in subsection (b)(2)(A) a report on
each export control that the President intends to renew.
(2) Form and content of report.--The report may be provided
on a classified basis if the Secretary considers it necessary.
Each report shall contain the following:
(A) A clearly stated explanation of the specific
United States foreign policy objective that the
existing export control was intended to achieve.
(B) An assessment of--
(i) the extent to which the existing export
control achieved its objectives before renewal
based on the objective criteria established for
evaluating the export control; and
(ii) the reasons why the existing export
control has failed to fully achieve its
objectives and, if renewed, how the export
control will achieve that objective before the
next renewal year.
(C) An updated description and assessment of--
(i) each of the criteria described in
section 303, and
(ii) each matter required to be reported
under section 304(b) (1) through (8).
(3) Renewal of export control.--The President may renew an
export control under this title after submission of the report
described in paragraph (2) and publication of notice of renewal
in the Federal Register.
SEC. 308. TERMINATION OF CONTROLS UNDER THIS TITLE.
(a) In General.--Notwithstanding any other provision of law, the
President--
(1) shall terminate any export control imposed under this
title if the President determines that the control has
substantially achieved the objective for which it was imposed;
and
(2) may terminate at any time any export control imposed
under this title that is not required by law.
(b) Exception.--Paragraphs (1) and (2) of subsection (a) do not
apply to any export control imposed pursuant to section 310.
(c) Effective Date of Termination.--The termination of an export
control pursuant to this section shall take effect 30 days after the
President has consulted with the Committee on International Relations
of the House of Representatives and the Committee on Foreign Relations
of the Senate on the foreign policy implications of such termination.
Notice of the termination shall be published in the Federal Register.
SEC. 309. COMPLIANCE WITH INTERNATIONAL OBLIGATIONS.
Notwithstanding any other provision of this Act setting forth
limitations on authority to control exports and except as provided in
section 304, the President may impose controls on exports to a
particular country or countries--
(1) of items listed on the control list of a multilateral
export control regime; or
(2) in order to fulfill obligations or commitments of the
United States under resolutions of the United Nations and under
treaties, or other international agreements and arrangements,
to which the United States is a party.
SEC. 310. DESIGNATION OF COUNTRIES SUPPORTING INTERNATIONAL TERRORISM.
(a) License Required.--Notwithstanding any other provision of this
Act setting forth limitations on the authority to control exports, a
license shall be required for the export of any item to a country if
the Secretary of State has determined that--
(1) the government of such country has repeatedly provided
support for acts of international terrorism; and
(2) the export of the item could make a significant
contribution to the military potential of such country,
including its military logistics capability, or could enhance
the ability of such country to support acts of international
terrorism.
(b) Notification.--The Secretary and the Secretary of State shall
notify the Committee on International Relations 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 required by subsection (a).
(c) Determinations Regarding Repeated Support.--Each determination
of the Secretary of State under subsection (a)(1), including each
determination in effect on the date of the enactment of the
Antiterrorism and Arms Export Amendments Act of 1989, shall be
published in the Federal Register.
(d) Limitations on Rescinding Determination.--A determination made
by the Secretary of State under subsection (a)(1) 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--
(1) before the proposed rescission would take effect, a
report certifying that--
(A) there has been a fundamental change in the
leadership and policies of the government of the
country concerned;
(B) that government is not supporting acts of
international terrorism; and
(C) that government has provided assurances that it
will not support acts of international terrorism in the
future; or
(2) at least 45 days before the proposed rescission would
take effect, a report justifying the rescission and certifying
that--
(A) the government concerned has not provided any
support for international terrorism during the
preceding 6-month period; and
(B) the government concerned has provided
assurances that it will not support acts of
international terrorism in the future.
(e) Information To Be Included in Notification.--The Secretary and
the Secretary of State shall include in the notification required by
subsection (b)--
(1) a detailed description of the item to be offered,
including a brief description of the capabilities of any item
for which a license to export is sought;
(2) the reasons why the foreign country or international
organization to which the export or transfer is proposed to be
made needs the item which is the subject of such export or
transfer and a description of the manner in which such country
or organization intends to use the item;
(3) the reasons why the proposed export or transfer is in
the national interest of the United States;
(4) an analysis of the impact of the proposed export or
transfer on the military capabilities of the foreign country or
international organization to which such export or transfer
would be made;
(5) an analysis of the manner in which the proposed export
would affect the relative military strengths of countries in
the region to which the item which is the subject of such
export would be delivered and whether other countries in the
region have comparable kinds and amounts of the item; and
(6) an analysis of the impact of the proposed export or
transfer on the United States relations with the countries in
the region to which the item which is the subject of such
export would be delivered.
SEC. 311. CRIME CONTROL INSTRUMENTS.
(a) In General.--Crime control and detection instruments and
equipment shall not be approved for export by the Secretary except
pursuant to an individual export license.
(b) Implementation.--Notwithstanding any other provision of this
Act--
(1) any determination by the Secretary of what goods or
technology shall be included on the list established pursuant
to this subsection as a result of the export restrictions
imposed by this section shall be made with the concurrence of
the Secretary of State; and
(2) any determination by the Secretary to approve or deny
an export license application to export crime control or
detection instruments or equipment shall be made in concurrence
with the recommendations of the Secretary of State submitted to
the Secretary with respect to the application pursuant to
section 401 of this Act.
(c) Limitation.--
(1) In general.--Notwithstanding subsection (b), the
Secretary shall not approve the export to a country of crime
control and detection instruments and equipment especially
susceptible to abuse as implements of torture if the government
of such country, or any group supported by or acting on behalf
of such government, has repeatedly engaged in acts of torture
unless the Secretary, with the concurrence of the Secretary of
State, determines that the end user of the instruments or
equipment proposed for export has not been engaged in acts of
torture.
(2) List.--The Secretary shall establish and maintain a
list of crime control and detection instruments and equipment
especially susceptible to abuse as implements of torture for
purposes of paragraph (1), and shall publish such list in the
Federal Register.
(d) Exception.--Subsection (a) shall not apply to exports to
countries that are NATO or are major non-NATO allies.
(e) Prohibition.--Notwithstanding any other provision of this
section, including subsection (d), the export to any country of leg
irons, saps, blackjacks, electroshock stun belts, thumb cuffs, and
items specially designed as implements of torture, as determined by the
Secretary, including components produced for incorporation into these
items and the technology used for the development or production of
these items, shall be prohibited.
(f) Definition.--For purposes of this section, the term ``acts of
torture'' means acts committed by a person acting under the color of
law that are specifically intended to inflict severe physical or mental
pain or suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within the custody or physical control
of the person performing the acts.
SEC. 312. MEASURES TO PROTECT THE PUBLIC HEALTH.
(a) In General.--In order to carry out the policy set forth in
paragraph (4) of section 301(b), test articles intended for clinical
investigations shall be approved for export by the President only
pursuant to an export license.
(b) Criteria for Export License.--In addition to the criteria set
forth in paragraph (4) of section 401(a), the President shall require,
as a prerequisite for approval of an export license for a test article
required by subsection (a) of this section, that an applicant for such
license--
(1) identify each clinical investigation for which the test
article is intended; and
(2) submit proof that each of the protocols for every
clinical investigation identified under paragraph (1) has been
reviewed by an institutional review board and met the same
standards for the protection of the rights and welfare of human
subjects as would be required for IRB approval of the protocol
if the protocol were for a clinical investigation of such test
article pursuant to the Federal Food, Drug, and Cosmetic Act.
(c) Reporting Requirement.--Not later than one year after the date
of enactment of this Act, and annually thereafter, the President shall
prepare and submit to the appropriate congressional committees a report
regarding the approval of export licenses as required by subsection
(a). Such report shall include--
(1) the names of the applicants for such export licenses;
(2) the names of approved applicants for such export
licenses; and
(3) the destination country or countries for each
application for such export licenses.
(d) Exception.--The provisions of this section shall not apply if
the destination country is a full member of the Europen Union, a full
member of the European Free Trade Association, Canada, Japan,
Australia, Israel, or New Zealand.
(e) Definitions.--In this section:
(1) Application for research or marketing permit.--The term
``application for research or marketing permit'' has the
meaning given that term in section 56.102(b) of title 21, Code
of Federal Regulations, or successor regulations.
(2) Appropriate congressional committees.--The term
``appropriate congressional committees'' means the Committee on
International Relations of the House of Representatives and the
Committee on Banking, Housing, and Urban Affairs of the Senate.
(3) Clinical investigation.--The term ``clinical
investigation'' means any experiment that involves a test
article and one or more human subjects, and that either must
meet the requirements for prior submission to the Food and Drug
Administration under section 505(i), 507(d), or 520(g) of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(i), 357(d),
or 360j(g)), or need not meet the requirements for prior
submission to the Food and Drug Administration under those
sections, but the results of which are intended to be later
submitted to, or held for inspection by, the Food and Drug
Administration as part of an application for a research or
marketing permit. The term does not include experiments that
must meet the provisions of part 58 of title 21, Code of
Federal Regulations, or successor regulations, regarding
nonclinical laboratory studies.
(4) Destination country.--The term ``destination country''
means the country into which test articles are being exported.
(5) Human subject.--The term ``human subject'' means an
individual who is or becomes a participant in research, either
as a recipient of the test article or as a control. A subject
may be either a healthy individual or a patient.
(6) Institution.--The term ``institution'' means any public
or private entity or agency (including Federal, State, and
other agencies), either in the United States or other country.
(7) Institutional review board; irb.--The terms
``institutional review board'' and ``IRB'' mean any board,
committee, or other group formally designated by an institution
to review, to approve the initiation of, and to conduct
periodic review of, biomedical research involving human
subjects. The primary purpose of such review is to assure the
protection of the rights and welfare of the human subjects.
(8) irb approval.--The term ``IRB approval'' means the
determination of an IRB made pursuant to part 56 of title 21,
Code of Federal Regulations, or successor regulations, that a
clinical investigation has been reviewed and may be conducted
at an institution within the constraints set forth by the IRB
and by other institutional and Federal requirements.
(9) Test article.--The term ``test article'' means any drug
for human use, biological product for human use, medical device
for human use, human food additive, color additive, electronic
product, or any other article that would be subject to
regulation under the Federal Food, Drug, and Cosmetic Act if
introduced into interstate commerce.
SEC. 313. PROMOTION OF SAFE ENVIRONMENTS.
(a) In General.--In order to carry out the policy set forth in
paragraph (5) of section 301(b), the President may prohibit the
exportation of pesticides or chemicals that the President deems to be a
risk to the public health, safety, or environment of the United States
or any other country.
(b) Report on Exports.--
(1) Report.--The President shall, by not later than 6
months after the date of enactment of this Act--
(A) identify all United States persons who export
any hazardous pesticide or chemical that is--
(i) included in the Convention on the Prior
Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in
International Trade, or the Convention on
Persistent Organic Pollutants; or
(ii) either banned, severely restricted,
highly regulated, or never regulated for use in
the United States;
(B) determine the quantities of each hazardous
pesticide and chemical described in subparagraph (A)
that each United States person has exported in the 2-
year period preceding the date of enactment of this
Act; and
(C) submit to the Committee on International
Relations of the House of Representatives and to the
Committee on Banking, Housing, and Urban Affairs and
the Committee on Foreign Relations of the Senate a
comprehensive report on the information described in
subparagraphs (A) and (B).
(2) Regulatory and administrative frameworks.--The
President shall include in the report under paragraph (1) a
detailed description, done in consultation with appropriate
departments and agencies, of the regulatory and administrative
frameworks in the United States for measuring, monitoring, and
controlling the export of the pesticides and chemicals
described in paragraph (1), and any recommendations the
President has on how such frameworks could be improved as
methods for controlling the export of those substances.
(c) GAO Report.--The Comptroller General of the United States, in
consultation with the National Academy of Sciences and such other
departments and agencies as the Comptroller General considers
appropriate, shall, by not later than 1 year after the date of the
enactment of this Act--
(1) examine the regulatory and administrative frameworks in
the United States for measuring, monitoring, and controlling
the exportation of the pesticides and chemicals described in
subsection (b), and determine the efficiency and effectiveness
of those frameworks;
(2) compare the United States regulatory and administrative
frameworks under paragraph (1) with those of the other member
countries of the Organization for Economic Cooperation and
Development, and provide recommendations concerning any
elements of the frameworks of those countries that might be
applied to the United States frameworks to help improve their
efficiency and effectiveness;
(3) compare the quantities of each of the substances
described in paragraph (1) which have been exported by the
United States and all other member countries of the
Organization for Economic Cooperation and Development during
the 2-year period preceding the date of enactment of this Act;
(4) evaluate the adequacy of current statutory and
regulatory authority, as well as appropriations, for measuring,
monitoring, and controlling the export of those substances and
suggest improvements for ensuring better measuring, monitoring,
and control of those exports; and
(5) submit to the Committee on International Relations of
the House of Representatives and to the Committee on Banking,
Housing, and Urban Affairs and the Committee on Foreign
Relations of the Senate a report on the findings under
paragraphs (1) through (4).
TITLE IV--PROCEDURES FOR EXPORT LICENSES AND INTERAGENCY DISPUTE
RESOLUTION
SEC. 401. EXPORT LICENSE PROCEDURES.
(a) Responsibility of the Secretary.--
(1) In general.--All applications for a license or other
authorization to export a controlled item shall be filed in
such manner and include such information as the Secretary may,
by regulation, prescribe.
(2) 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.
(3) Calculation of processing times.--In calculating the
processing times set forth in this title, 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.
(4) Criteria for evaluating applications.--In determining
whether to grant an application to export a controlled item
under this Act, the following criteria shall be considered:
(A) The characteristics of the controlled item.
(B) The threat to--
(i) the national security interests of the
United States from items controlled under title
II of this Act; or
(ii) the foreign policy of the United
States from items controlled under title III of
this Act.
(C) The country tier designation of the country to
which a controlled item is to be exported pursuant to
section 203.
(D) The risk of export diversion or misuse by--
(i) the exporter;
(ii) the method of export;
(iii) the end user;
(iv) the country where the end user is
located; and
(v) the end use.
(E) Risk mitigating factors including, but not
limited to--
(i) changing the characteristics of the
controlled item;
(ii) after-market monitoring by the
exporter; and
(iii) post-shipment verification.
(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 information regarding the receipt
and status of the application.
(2) Initial procedures.--
(A) In general.--Not later than 9 days after
receiving any license application, the Secretary
shall--
(i) 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 title; and
(ii) upon receipt of a completed
application--
(I) ensure that the classification
state on the application for the export
items is correct, and, if so, refer the
application, through the use of a
common data base or other means, and
all information submitted by the
applicant, and all necessary
recommendations and analyses by the
Secretary, to the Secretary of Defense,
the Secretary of State, and the heads
of and other departments and agencies
the Secretary considers appropriate; or
(II) return the application if a
license is not required.
(B) Referral not required.--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 agency head
shall notify the Secretary of the specific types of
such applications that the department or agency does
not wish to review.
(3) Withdrawal of application.--An applicant may, by
written notice to the Secretary, withdraw an application at any
time before final action.
(c) Action by Other Departments and Agencies.--
(1) Referral to other agencies.--The Secretary shall
promptly refer a license application to the departments and
agencies under subsection (b) to make recommendations and
provide information to the Secretary.
(2) Responsibility of referral departments and agencies.--
The Secretary of Defense, the Secretary of State, and the heads
of other reviewing departments and agencies shall take all
necessary actions on an application in a prompt and responsible
manner. Each department or agency reviewing an application
under this section shall establish and maintain records
properly identifying and monitoring the status of the matter
referred to the department or agency.
(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 title.
(4) Time period for action by referral departments and
agencies.--Within 30 days after the Secretary refers an
application under this section, each department or agency to
which an application has been referred 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
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) Action by the Secretary.--Not later than 30 days after the date
the application is referred, the Secretary shall--
(1) if there is agreement among the departments and
agencies to which the application has been referredunder
subsection (c) to issue or deny the license--
(A) issue the license and ensure all appropriate
personnel in the Department (including the Office of
Export Enforcement) are notified of all approved
license applications; or
(B) notify the applicant of the intention to deny
the license; or
(2) if there is no agreement among such departments and
agencies, notify the applicant that the application is subject
to the interagency dispute resolution process provided for in
section 402.
(e) Consequences of Application Denial.--
(1) In general.--If a determination is made to deny a
license, the Secretary shall inform the applicant in writing,
consistent with the protection of intelligence information
sources and methods, of--
(A) the determination;
(B) the specific statutory and regulatory bases for
the proposed denial;
(C) what, if any, modifications to, or restrictions
on, the items for which the license was sought would
allow such export to be compatible with export controls
imposed under this Act, and which officer or employee
of the Department 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;
(D) to the extent consistent with the national
security and foreign policy interests of the United
States, the specific considerations that led to the
determination to deny the application; and
(E) the availability of appeal procedures.
(2) Period for applicant to respond.--The applicant shall
have 20 days from the date of the notice of intent to deny the
application to respond in a manner that addresses and corrects
the reasons for the denial. If the applicant does not
adequately address or correct the reasons for denial or does
not respond, the license shall be denied. If the applicant does
address or correct the reasons for denial, the application
shall be considered in a timely manner.
(f) Appeals and Other Actions by Applicant.--
(1) In general.--The Secretary shall establish appropriate
procedures for an applicant to appeal to the Secretary the
denial of an application or other administrative action under
this Act. In any case in which the Secretary proposes to
reverse the decision with respect to the application, the
appeal under this subsection shall be handled in accordance
with the interagency dispute resolution process provided for in
section 402(b)(3).
(2) Enforcement of time limits.--
(A) In general.--In any case in which an action
prescribed in this section is not taken on an
application within the time period established by this
section (except in the case of a time period extended
under subsection (g) 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.
(B) Bringing court action.--If, within 20 days
after a petition is filed under subparagraph (A), the
processing of the application has not been brought into
conformity with the requirements of this section, or
the processing of 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.
(g) 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; complexity of analysis;
national security impact.--
(A) Agreement of the applicant.--Delays upon which
the Secretary and the applicant mutually agree.
(B) Complexity of analysis.--A reviewing department
or agency requires more time due to the complexity of
the analysis, if the additional time is not more than
60 days.
(C) National security impact.--A reviewing
department or agency requires additional time because
of the potential impact on the national security or
foreign policy interests of the United States, if the
additional time is not more than 60 days.
(2) Prelicense checks.--A prelicense check (for a period
not to exceed 60 days) that may be required to establish the
identity and reliability of the recipient of items controlled
under this Act, if--
(A) the need for the prelicense check is determined
by the Secretary or by another department or agency in
any case in which the request for the prelicense check
is made by such department or agency;
(B) the request for the prelicense check is
initiated 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.
(4) Exception.--Whenever a prelicense check described in
paragraph (2) or assurances described in paragraph (3) 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.
(5) Multilateral review.--Multilateral review of a license
application to the extent that such multilateral review is
required by a relevant multilateral regime.
(6) Congressional notification.--Such time as is required
for mandatory congressional notifications under this Act.
(7) Consultations.--Consultation with foreign governments,
if such consultation is provided for by a relevant multilateral
regime as a precondition for approving a license.
(8) Intelligence agencies.--Delays necessary to obtain
information or assessments from intelligence agencies.
(h) Classification Requests and Other Inquiries.--
(1) Classification request.--
(A) Notification of other agencies.--In any case in
which the Secretary receives a written request asking
for the proper classification of an item on the Control
List or the applicability of licensing requirements
under this title, the Secretary shall promptly notify
the Secretary of Defense, the Secretary of State, and
the head of any other department or agency of the
United States that the Secretary considers appropriate,
of the request.
(B) Determination; resolution of disputes.--The
Secretary shall make the determination regarding proper
classification within 14 days after receiving the
request and inform the person making the request of
such determination. If an objection is raised by the
Secretary of State or the Secretary of Defense
regarding the Secretary's determination within that
time period, the disagreement shall be resolved through
the interagency resolution process described in section
402, except that any such disagreement shall be
resolved within 60 days.
(2) Other inquiries.--In any case in which the Secretary
receives a written request for information under this Act, the
Secretary shall, within 30 days after receiving the request,
reply with that information to the person making the request.
SEC. 402. INTERAGENCY DISPUTE RESOLUTION PROCESS.
(a) In General.--All license applications on which agreement cannot
be reached shall be referred to the interagency dispute resolution
process for decision.
(b) Interagency Dispute Resolution Process.--
(1) Initial resolution.--The Secretary shall establish,
select the chairperson of, and determine procedures for an
interagency committee to review initially all license
applications described in subsection (a) with respect to which
the Secretary and any of the referral departments and agencies
are not in agreement. The chairperson shall consider the
positions of all the referral departments and agencies (which
shall be included in the minutes described in subsection
(c)(2)) and make a decision on the license application,
including appropriate revisions or conditions thereto.
(2) Intelligence community.--The analytic product of the
intelligence community should be fully considered with respect
to any proposed license under this title.
(3) Further resolution.--The President shall establish
additional levels for review or appeal of any matter that
cannot be resolved pursuant to the process described in
paragraph (1). Each such review shall ensure that matters are
resolved or referred to the President not later than 90 days
after the completed license application is referred by the
Secretary.
(c) Final Action.--
(1) In general.--Once a final decision is made under
subsection (b), the Secretary shall promptly--
(A) issue the license and ensure that all
appropriate personnel in the Department (including the
Office of Export Enforcement) are notified of all
approved license applications; or
(B) notify the applicant of the intention to deny
the application.
(2) Minutes.--The interagency committee and each level of
the interagency dispute resolution process shall keep
reasonably detailed minutes of all meetings. On each matter
before the interagency committee or before any other level of
the interagency dispute resolution process in which members
disagree, each member shall clearly state the reasons for the
member's position and the reasons shall be entered in the
minutes.
TITLE V--INTERNATIONAL ARRANGEMENTS; FOREIGN BOYCOTTS; SANCTIONS; AND
ENFORCEMENT
SEC. 501. INTERNATIONAL ARRANGEMENTS.
(a) Multilateral Export Control Regimes.--
(1) Policy.--It is the policy of the United States to seek
multilateral arrangements that support the national security
objectives of the United States (as described in title II) and
that establish fairer and more predictable competitive
opportunities for United States exporters.
(2) Participation in existing regimes.--Congress encourages
the United States to continue its active participation in and
to strengthen existing multilateral export control regimes.
(3) Participation in new regimes.--It is the policy of the
United States to participate in additional multilateral export
control regimes if such participation would serve the national
security interests of the United States.
(b) Annual Report on Multilateral Export Control Regimes.--Not
later than February 1 of each year, the President shall submit to the
Committee on Banking, Housing, and Urban Affairs of the Senate and the
Committee on International Relations of the House of Representatives a
report evaluating the effectiveness of each multilateral export control
regime, including an assessment of the steps undertaken pursuant to
subsections (c) and (d). The report, or any part of this report, may be
submitted in classified form to the extent the President considers
necessary.
(c) Standards for Multilateral Export Control Regimes.--The
President shall take steps to establish the following features in any
multilateral export control regime in which the United States is
participating or may participate:
(1) Full membership.--All supplier countries are members of
the regime, and the policies and activities of the members are
consistent with the objectives and membership criteria of the
multilateral export control regime.
(2) Effective enforcement and compliance.--The regime
promotes enforcement and compliance with the regime's rules and
guidelines.
(3) Public understanding.--The regime makes an effort to
enhance public understanding of the purpose and procedures of
the multilateral export control regime.
(4) Effective implementation procedures.--The multilateral
export control regime has procedures for the uniform and
consistent interpretation and implementation of its rules and
guidelines.
(5) Enhanced cooperation with regime nonmembers.--There is
agreement among the members of the multilateral export control
regime to--
(A) cooperate with governments outside the regime
to restrict the export of items controlled by such
regime; and
(B) establish an ongoing mechanism in the regime to
coordinate planning and implementation of export
control measures related to such cooperation.
(6) Periodic high-level meetings.--There are regular
periodic meetings of high-level representatives of the
governments of members of the multilateral export control
regime for the purpose of coordinating export control policies
and issuing policy guidance to members of the regime.
(7) Common list of controlled items.--There is agreement on
a common list of items controlled by the multilateral export
control regime.
(8) Regular updates of common list.--There is a procedure
for removing items from the list of controlled items when the
control of such items no longer serves the objectives of the
members of the multilateral export control regime.
(9) Treatment of certain countries.--There is agreement to
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.
(10) Harmonization of license approval procedures.--There
is harmonization among the members of the regime of their
national export license approval procedures, practices, and
standards.
(11) Undercutting.--There is a limit with respect to when
members of a multilateral export control regime--
(A) grant export licenses for any item that is
substantially identical to or directly competitive with
an item controlled pursuant to the regime, where the
United States has denied an export license for such
item, or
(B) approve exports to a particular end user to
which the United States has denied export license for a
similar item.
(d) Standards for National Export Control Systems.--The President
shall take steps to attain the cooperation of members of each regime in
implementing effective national export control systems containing the
following features:
(1) Export control law.--Enforcement authority, civil and
criminal penalties, and statutes of limitations are sufficient
to deter potential violations and punish violators under the
member's export control law.
(2) License approval process.--The system for evaluating
export license applications includes sufficient technical
expertise to assess the licensing status of exports and ensure
the reliability of end users.
(3) Enforcement.--The enforcement mechanism provides
authority for trained enforcement officers to investigate and
prevent illegal exports.
(4) Documentation.--There is a system of export control
documentation and verification with respect to controlled
items.
(5) Information.--There are procedures for the coordination
and exchange of information concerning licensing, end users,
and enforcement with other members of the multilateral export
control regime.
(6) Resources.--The member has devoted adequate resources
to administer effectively the authorities, systems, mechanisms,
and procedures described in paragraphs (1) through (5).
(e) Objectives Regarding Multilateral Export Control Regimes.--The
President shall seek to achieve the following objectives with regard to
multilateral export control regimes:
(1) Strengthen existing regimes.--Strengthen existing
multilateral export control regimes--
(A) by creating a requirement to share information
about export license applications among members before
a member approves an export license; and
(B) harmonizing national export license approval
procedures and practices, including the elimination of
undercutting.
(2) Review and update.--Review and update multilateral
regime export control lists with other members, taking into
account--
(A) national security concerns;
(B) the controllability of items; and
(C) the costs and benefits of controls.
(3) Encourage compliance by nonmembers.--Encourage
nonmembers of the multilateral export control regime--
(A) to strengthen their national export control
regimes and improve enforcement;
(B) to adhere to the appropriate multilateral
export control regime; and
(C) not to undermine an existing multilateral
export control regime by exporting controlled items in
a manner inconsistent with the guidelines of the
regime.
(f) Transparency of Multilateral Export Control Regimes.--
(1) Publication of information on each existing regime.--
Not later than 120 days after the date of enactment of this
Act, the Secretary shall, for each multilateral export control
regime, to the extent that it is not inconsistent with the
arrangements of that regime (in the judgment of the Secretary
of State) or with the national interest, publish in the Federal
Register and post on the Department of Commerce website the
following information with respect to the regime:
(A) The purposes of the regime.
(B) The members of the regime.
(C) The export licensing policy of the regime.
(D) The items that are subject to export 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 export controls of the regime.
(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.--Not later than 60 days after the United
States joins or organizes a new multilateral export control
regime, the Secretary shall, to the extent that it is not
inconsistent with arrangements under the regime (in the
judgment of the Secretary of State) or with the national
interest, publish in the Federal Register and post on the
Department of Commerce website the information described in
subparagraphs (A) through (H) of paragraph (1) with respect to
the regime.
(3) Publication of changes.--Not later than 60 days after a
multilateral export control regime adopts any change in the
information published under this subsection, the Secretary
shall, to the extent not inconsistent with the arrangements
under the regime or the national interest, publish such changes
in the Federal Register and post such changes on the Department
of Commerce website.
(g) Support of Other Countries' Export Control Systems.--The
Secretary is encouraged to continue to--
(1) participate in training of, and provide training to,
officials of other countries on the principles and procedures
for implementing effective export controls; and
(2) participate in any such training provided by other
departments and agencies of the United States.
SEC. 502. FOREIGN BOYCOTTS.
(a) Purposes.--The purposes of this section are as follows:
(1) 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.
(2) To encourage and, in specified cases, require United
States persons engaged in the export of items 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.
(b) Prohibitions and Exceptions.--
(1) Prohibitions.--In order to carry out the purposes set
forth in subsection (a), 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 that is friendly to the
United States and 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, or requirement
of, or a request from or on behalf of the boycotting
country (subject to the condition that the intent
required to be associated with such an act in order to
constitute a violation of the prohibition is not
indicated solely by 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).
(B) Refusing, or requiring any other person to
refuse, to employ or otherwise discriminate 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 (other than furnishing
normal business information in a commercial context, as
defined by the Secretary) 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.
(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.
(F) Paying, honoring, confirming, or otherwise
implementing a letter of credit which contains any
condition or requirement the 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) compliance, or agreement to comply, with
requirements--
(i) prohibiting the import of items from
the boycotted country or items produced or
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 items 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) compliance, or agreement 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, for purposes of applying any exception under this
subparagraph, 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) compliance, or agreement to comply, in the
normal course of business with the unilateral and
specific selection by a boycotting country, or a
national or resident thereof, or carriers, insurers,
suppliers of services to be performed within the
boycotting country, or specific items which, in the
normal course of business, are identifiable by source
when imported into the boycotting country;
(D) compliance, or agreement to comply, with export
requirements of the boycotting country relating to
shipment 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 a person to
comply, with the laws of the country with respect to
the 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.
(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 this 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 applies 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 or the regulations issued pursuant to this subsection.
The regulations issued pursuant to this section shall expressly
provide that the exceptions set forth in paragraph (2) do not
permit activities or agreements (expressed or implied by a
course of conduct, including a pattern of responses) that are
otherwise prohibited, pursuant to the intent of such
exceptions.
(c) Additional Regulations and Reports.--
(1) Regulations.--In addition to the regulations issued
pursuant to subsection (b), regulations issued pursuant to
title III shall implement the purposes set forth in subsection
(a).
(2) Reports by united states persons.--The regulations
shall require that any United States person receiving a request
to furnish information, enter into or implement an agreement,
or take any other action referred to in subsection (a) shall
report that request to the Secretary, together with any other
information concerning the request that the Secretary
determines appropriate. The person shall also submit to the
Secretary a statement regarding whether the person intends to
comply, and whether the person has complied, with the 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 item to which such report relates may be treated as
confidential if the Secretary determines that disclosure of
that information would place the United States person involved
at a competitive disadvantage. The Secretary shall periodically
transmit summaries of the information contained in the reports
to the Secretary of State for such action as the Secretary of
State, in consultation with the Secretary, considers
appropriate to carry out the purposes set forth in subsection
(a).
(d) Preemption.--The provisions of this section and the regulations
issued under this section shall preempt any law, rule, or regulation
that--
(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. 503. PENALTIES.
(a) Criminal Penalties.--
(1) Violations by an individual.--Any individual who
willfully violates, conspires to violate, or attempts to
violate any provision of this Act or any regulation, license,
or order issued under this Act shall be fined up to 10 times
the value of the exports involved or $1,000,000, whichever is
greater, imprisoned for not more than 10 years, or both, for
each violation.
(2) Violations by a person other than an individual.--Any
person other than an individual who willfully violates,
conspires to violate, or attempts to violate any provision of
this Act or any regulation, license, or order issued under this
Act shall be fined up to 10 times the value of the exports
involved or $5,000,000, whichever is greater, for each
violation.
(b) Forfeiture of Property Interest and Proceeds.--
(1) Forfeiture.--Any person who is convicted under
paragraph (1) or (2) of subsection (a) shall, in addition to
any other penalty, forfeit to the United States--
(A) any of that person's security or other interest
in, claim against, or property or contractual rights of
any kind in the tangible items that were the subject of
the violation;
(B) any of that person's security or other interest
in, claim against, or property or contractual rights of
any kind in the tangible property that was used in the
export or attempt to export that was the subject of the
violation; and
(C) any of that person's property constituting, or
derived from, any proceeds obtained directly or
indirectly as a result of the violation.
(2) Procedures.--The procedures in any forfeiture under
this subsection, and the duties and authority of the courts of
the United States and the Attorney General with respect to any
forfeiture action under this subsection, or with respect to any
property that may be subject to forfeiture under this
subsection, shall be governed by the provisions of chapter 46
of title 18, United States Code (relating to criminal
forfeiture), to the same extent as property subject to
forfeiture under that chapter.
(c) Civil Penalties; Administrative Sanctions.--
(1) Civil penalties.--The Secretary may impose a civil
penalty of up to $500,000 for each violation of a provision of
this Act or any regulation, license, or order issued under this
Act. A civil penalty under this paragraph may be in addition
to, or in lieu of, any other liability or penalty which may be
imposed for such a violation.
(2) Denial of export privileges.--The Secretary may deny
the export privileges of any person, including the suspension
or revocation of the authority of such person to export or
receive United States-origin items subject to this Act, for a
violation of a provision of this Act or any regulation,
license, or order issued under this Act.
(3) Exclusion from practice.--The Secretary may exclude any
person acting as an attorney, accountant, consultant, freight
forwarder, or in any other representative capacity from
participating before the Department with respect to a license
application or any other matter under this Act.
(d) Payment of Civil Penalties.--
(1) Payment as condition of further export privileges.--The
payment of a civil penalty imposed under subsection (c) may be
made a condition for 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. The period for which the payment of a penalty may
be made such a condition may not exceed 1 year after the date
on which the payment is due.
(2) Deferral or suspension.--
(A) In general.--The payment of a civil penalty
imposed under subsection (c) may be deferred or
suspended in whole or in part for a period no longer
than any probation period (which may exceed 1 year)
that may be imposed upon the person on whom the penalty
is imposed.
(B) No bar to collection of penalty.--A deferral or
suspension under subparagraph (A) shall not operate as
a bar to the collection of the penalty concerned in the
event that the conditions of the suspension, deferral,
or probation are not fulfilled.
(3) Treatment of payments.--Any amount paid in satisfaction
of a civil penalty imposed under subsection (c) shall be
covered into the Treasury as miscellaneous receipts.
(e) Refunds.--
(1) Authority.--
(A) In general.--The Secretary may, in the
Secretary's discretion, refund any civil penalty
imposed under subsection (c) on the ground of a
material error of fact or law in imposition of the
penalty.
(B) Limitation.--A civil penalty may not be
refunded under subparagraph (A) later than 2 years
after payment of the penalty.
(2) Prohibition on actions for refund.--Notwithstanding
section 1346(a) of title 28, United States Code, no action for
the refund of any civil penalty referred to in paragraph (1)
may be maintained in any court.
(f) Effect of Other Convictions.--
(1) Denial of export privileges.--Any person convicted of a
violation of--
(A) a provision of this Act or the Export
Administration Act of 1979,
(B) a provision of the International Emergency
Economic Powers Act (50 U.S.C. 1701 et seq.),
(C) section 793, 794, or 798 of title 18, United
States Code,
(D) section 4(b) of the Internal Security Act of
1950 (50 U.S.C. 783(b)),
(E) section 38 of the Arms Export Control Act (22
U.S.C. 2778),
(F) section 16 of the Trading with the Enemy Act
(50 U.S.C. App. 16),
(G) any regulation, license, or order issued under
any provision of law listed in subparagraph (A), (B),
(C), (D), (E), or (F),
(H) section 371 or 1001 of title 18, United States
Code, if in connection with the export of controlled
items under this Act or any regulation, license, or
order issued under the International Emergency Economic
Powers Act, or the export of items controlled under the
Arms Export Control Act,
(I) section 175 of title 18, United States Code,
(J) a provision of the Atomic Energy Act (42 U.S.C.
201 et seq.),
(K) section 831 of title 18, United States Code, or
(L) section 2332a of title 18, United States Code,
may, at the discretion of the Secretary, be denied export
privileges under this Act for a period not to exceed 10 years
from the date of the conviction. The Secretary may also revoke
any export license under this Act in which such person had an
interest at the time of the conviction.
(2) Related persons.--The Secretary may exercise the
authority under paragraph (1) with respect to any person
related through affiliation, ownership, control, or position of
responsibility to a person convicted of any violation of a law
set forth in paragraph (1) upon a showing of such relationship
with the convicted person. The Secretary shall make such
showing only after providing notice and opportunity for a
hearing.
(g) Statute of Limitations.--
(1) In general.--Except as provided in paragraph (2), a
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 later of the date of the alleged violation or the date of
discovery of the alleged violation.
(2) Exception.--
(A) Tolling.--In any case in which a criminal
indictment alleging a violation under subsection (a) is
returned within the time limits prescribed by law for
the institution of such action, the limitation under
paragraph (1) for bringing a proceeding to impose a
civil penalty or other administrative sanction under
this section shall, upon the return of the criminal
indictment, be tolled against all persons named as a
defendant.
(B) Duration.--The tolling of the limitation with
respect to a defendant under subparagraph (A) as a
result of a criminal indictment shall continue for a
period of 6 months from the date on which the
conviction of the defendant becomes final, the
indictment against the defendant is dismissed, or the
criminal action has concluded.
(h) Violations Defined by Regulation.--Nothing in this section
shall limit the authority of the Secretary to define by regulation
violations under this Act.
(i) Construction.--Nothing in subsection (c), (d), (e), (f), or (g)
limits--
(1) the availability of other administrative or judicial
remedies with respect to a violation of a provision of this
Act, or any regulation, order, or license issued under this
Act;
(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)).
SEC. 504. MISSILE PROLIFERATION CONTROL VIOLATIONS.
(a) Violations by United States Persons.--
(1) Sanctions.--
(A) In general.--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, title II or III of
this Act, or any regulations or orders issued
under any such provisions,
(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,
then the President shall impose the applicable
sanctions described in subparagraph (B).
(B) Sanctions described.--The sanctions which apply
to a United States person under subparagraph (A) 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
Act.
(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
Act.
(2) Discretionary sanctions.--In the case of any
determination referred to in paragraph (1), the Secretary may
pursue any other appropriate penalties under section 503.
(3) Waiver.--The President may waive the imposition of
sanctions under paragraph (1) on a person with respect to an
item if the President certifies to Congress that--
(A) the item is essential to the national security
of the United States; and
(B) such person is a sole source supplier of the
item, the item is not available from any alternative
reliable supplier, and the need for the item cannot be
met in a timely manner by improved manufacturing
processes or technological developments.
(b) Transfers of Missile Equipment or Technology by Foreign
Persons.--
(1) Sanctions.--
(A) In general.--Subject to paragraphs (3) through
(7), if the President determines that a foreign person,
after the date of 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 MTCR adherent and would
be, if it were United States-origin equipment
or technology, subject to the jurisdiction of
the United States under this Act,
(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 subparagraph (B).
(B) Sanctions described.--The sanctions which apply
to a foreign person under subparagraph (A) 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 Act.
(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
Act.
(iii) If, in addition to actions taken
under clauses (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 MTCR adherent, 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.
(2) Inapplicability with respect to mtcr adherents.--
Paragraph (1) does not apply with respect to--
(A) any export, transfer, or trading activity that
is authorized by the laws of an MTCR adherent, if such
authorization is not obtained by misrepresentation or
fraud; or
(B) any export, transfer, or trade of an item to an
end user in a country that is an MTCR adherent.
(3) Effect of enforcement actions by mtcr adherents.--
Sanctions set forth in paragraph (1) may not be imposed under
this subsection on a person with respect to acts described in
such paragraph or, if such sanctions are in effect against a
person on account of such acts, such sanctions shall be
terminated, if an MTCR adherent is taking judicial or other
enforcement action against that person with respect to such
acts, or that person has been found by the government of an
MTCR adherent to be innocent of wrongdoing with respect to such
acts.
(4) 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 subsection. 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.
(5) Waiver and report to congress.--
(A) Waiver.--In any case other than one in which an
advisory opinion has been issued under paragraph (4)
stating that a proposed activity would not subject a
person to sanctions under this subsection, the
President may waive the application of paragraph (1) to
a foreign person if the President determines that such
waiver is essential to the national security of the
United States.
(B) Report to congress.--In the event that the
President decides to apply the waiver described in
subparagraph (A), the President shall so notify
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.
(6) Additional waiver.--The President may waive the
imposition of sanctions under paragraph (1) on a person with
respect to a product or service if the President certifies to
the Congress that--
(A) the product or service is essential to the
national security of the United States; and
(B) 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.
(7) Exceptions.--The President shall not apply the sanction
under this subsection prohibiting the importation of the
products of a foreign person--
(A) 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 or NATO
Programs of Cooperation;
(B) to products or services provided under
contracts entered into before the date on which the
President publishes his intention to impose the
sanctions; or
(C) 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.
(c) Definitions.--In this section:
(1) Missile.--The term ``missile'' means a category I
system as defined in the MTCR Annex, and any other unmanned
delivery system of similar capability, as well as the specially
designed production facilities for these systems.
(2) Missile technology control regime; mtcr.--The term
``Missile Technology Control Regime'' or ``MTCR'' means the
policy statement, 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-relevant transfers based on the MTCR Annex,
and any amendments thereto.
(3) MTCR adherent.--The term ``MTCR adherent'' means a
country that participates in the MTCR or that, pursuant to an
international understanding to which the United States is a
party, controls MTCR equipment or technology in accordance with
the criteria and standards set forth in the MTCR.
(4) MTCR annex.--The term ``MTCR Annex'' means the
Guidelines and Equipment and Technology Annex of the MTCR, and
any amendments thereto.
(5) Missile equipment or technology; mtcr equipment or
technology.--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.
(6) Foreign person.--The term ``foreign person'' means any
person other than a United States person.
(7) Person.--
(A) In general.--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.
(B) Identification in certain cases.--In the case
of countries where it may be impossible to identify a
specific governmental entity referred to in
subparagraph (A), 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.
(8) Otherwise engaged in the trade of.--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.
SEC. 505. CHEMICAL AND BIOLOGICAL WEAPONS PROLIFERATION SANCTIONS.
(a) Imposition of Sanctions.--
(1) Determination by the president.--Except as provided in
subsection (b)(2), the President shall impose both of the
sanctions described in subsection (c) if the President
determines that a foreign person, on or after the date of
enactment of this section, has knowingly and materially
contributed--
(A) through the export from the United States of
any item that is subject to the jurisdiction of the
United States under this Act, or
(B) through the export from any other country of
any item that would be, if it were a United States
item, subject to the jurisdiction of the United States
under this Act,
to the efforts by any foreign country, project, or entity
described in paragraph (2) to use, develop, produce, stockpile,
or otherwise acquire chemical or biological weapons.
(2) Countries, projects, or entities receiving
assistance.--Paragraph (1) applies in the case of--
(A) any foreign country that the President
determines has, at any time after the date of enactment
of this Act--
(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 clause
(i) or (ii);
(B) any foreign country whose government is
determined for purposes of section 310 to be a
government that has repeatedly provided support for
acts of international terrorism; or
(C) any other foreign country, project, or entity
designated by the President for purposes of this
section.
(3) Persons against which sanctions are to be imposed.--
Sanctions shall be imposed pursuant to paragraph (1) on--
(A) the foreign person with respect to which the
President makes the determination described in that
paragraph;
(B) any successor entity to that foreign person;
(C) 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
(D) 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.
(b) Consultations With and Actions by Foreign Government of
Jurisdiction.--
(1) Consultations.--If the President makes the
determinations described in subsection (a)(1) with respect to a
foreign person, 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 section.
(2) Actions by government of jurisdiction.--In order to
pursue such consultations with that government, the President
may delay imposition of sanctions pursuant to this section for
a period of up to 90 days. Following the consultations, the
President shall impose sanctions unless the President
determines and certifies to Congress that government has taken
specific and effective actions, including appropriate
penalties, to terminate the involvement of the foreign person
in the activities described in subsection (a)(1). The President
may delay imposition of sanctions for an additional period of
up to 90 days if the President determines and certifies to
Congress that government is in the process of taking the
actions described in the preceding sentence.
(3) Report to congress.--The President shall report to
Congress, not later than 90 days after making a determination
under subsection (a)(1), on the status of consultations with
the appropriate government under this subsection, and the basis
for any determination under paragraph (2) of this subsection
that such government has taken specific corrective actions.
(c) Sanctions.--
(1) Description of sanctions.--The sanctions to be imposed
pursuant to subsection (a)(1) are, except as provided in
paragraph (2) of this subsection, the following:
(A) 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 subsection (a)(3).
(B) Import sanctions.--The importation into the
United States of products produced by any person
described in subsection (a)(3) shall be prohibited.
(2) Exceptions.--The President shall not be required to
apply or maintain sanctions under this section--
(A) 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;
(B) to products or services provided under
contracts entered into before the date on which the
President publishes his intention to impose sanctions;
(C) 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;
(D) to information and technology essential to
United States products or production; or
(E) to medical or other humanitarian items.
(d) Termination of Sanctions.--The sanctions imposed pursuant to
this section 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 subsection (a)(1) 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
subsection.
(e) Waiver.--
(1) Criterion for waiver.--The President may waive the
application of any sanction imposed on any person pursuant to
this section, 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 Congress that such
waiver is important to the national security interests of the
United States.
(2) Notification of and report to congress.--If the
President decides to exercise the waiver authority provided in
paragraph (1), 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.
(f) Definition of Foreign Person.--For the purposes of this
section, the term ``foreign person'' means--
(1) an individual who is not a citizen of the United States
or an alien admitted for permanent residence to the United
States; or
(2) 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.
SEC. 506. 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 departments and agencies that the Secretary considers
appropriate, shall be responsible for providing policy guidance
on the enforcement of this Act.
(2) General authorities.--
(A) Exercise of authority.--To the extent necessary
or appropriate to the enforcement of this Act, officers
and employees of the Department designated by the
Secretary, officers and employees of the United States
Customs Service designated by the Commissioner of
Customs, and officers and employees of any other
department or agency designated by the head of a
department or agency exercising functions under this
Act, may exercise the enforcement authority under
paragraph (3).
(B) Customs service.--In carrying out enforcement
authority under 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 ports of entry into or exit from the United States
where officers of the United States Customs Service are
authorized by law to carry out law enforcement
responsibilities. Subject to paragraph (3), the United
States Customs Service is authorized, in the
enforcement of this Act, to search, detain (after
search), and seize items at the ports of entry into or
exit from the United States where officers of the
United States Customs Service are authorized by law to
conduct searches, detentions, and seizures, and at the
places outside the United States where the United
States Customs Service, pursuant to agreement or other
arrangement with other countries, is authorized to
perform enforcement activities.
(C) Other employees.--In carrying out enforcement
authority under paragraph (3), the Secretary and
officers and employees of the Department designated by
the Secretary may make investigations within the United
States, and may conduct, outside the United States,
pre-license and post-shipment verifications of
controlled items and investigations in the enforcement
of section 502. The Secretary and officers and
employees of the Department designated by the Secretary
are authorized to search, detain (after search), and
seize items at places within the United States other
than ports referred to in subparagraph (B). The search,
detention (after search), or seizure of items at the
ports and places referred to in subparagraph (B) may be
conducted by officers and employees of the Department
only with the concurrence of the Commissioner of
Customs or a person designated by the Commissioner.
(D) Agreements and arrangements.--The Secretary and
the Commissioner of Customs may enter into agreements
and arrangements for the enforcement of this Act,
including foreign investigations and information
exchange.
(3) Specific authorities.--
(A) Actions by any designated personnel.--Any
officer or employee designated under paragraph (2), in
carrying out the enforcement authority under this Act,
may do the following:
(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
allowance as paid witnesses in the district
courts of the United States.
(B) Actions by office of export enforcement and
customs service personnel.--
(i) Office of export enforcement and
customs service personnel.--Any officer or
employee of the Office of Export Enforcement of
the Department of Commerce (in this Act
referred to as ``OEE'') 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 Act:
(I) Execute any warrant or other
process issued by a court or officer of
competent jurisdiction with respect to
the enforcement of this Act.
(II) Make arrests without warrant
for any violation of this Act committed
in his or 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) OEE personnel.--Any officer or
employee of the OEE designated by the Secretary
under paragraph (2) shall exercise the
authority set forth in clause (i) pursuant to
guidelines approved by the Attorney General.
(C) Other actions by customs service personnel.--
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 Act:
(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 Act.
(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 Act.
(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 Act.
(4) Other authorities not affected.--The authorities
conferred by this section are in addition to any authorities
conferred under other laws.
(b) Forfeiture.--
(1) In general.--Any tangible items lawfully seized under
subsection (a) by designated officers or employees shall be
subject to forfeiture to the United States.
(2) Applicable laws.--Those provisions of law relating to--
(A) the seizure, summary and judicial forfeiture,
and condemnation of property for violations of the
customs laws;
(B) the disposition of such property or the
proceeds from the sale thereof;
(C) the remission or mitigation of such
forfeitures; and
(D) the compromise of claims,
shall apply to seizures and forfeitures incurred, or alleged to
have been incurred, under the provisions of this subsection,
insofar as applicable and not inconsistent with this Act.
(3) Forfeitures under customs laws.--Duties that are
imposed upon a customs officer or any other person with respect
to the seizure and forfeiture of property under the customs
laws may be performed with respect to seizures and forfeitures
of property under this subsection by the Secretary or any
officer or employee of the Department that may be authorized or
designated for that purpose by the Secretary (or by the
Commissioner of Customs or any officer or employee of the
United States Customs Service designated by the Commissioner),
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 Act
shall be referred to the Secretary for purposes of determining civil
penalties and administrative sanctions under section 503 or to the
Attorney General for criminal action in accordance with this Act 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 OEE that is necessary
for the detection and prosecution of violations of this Act--
(A) funds made available for export enforcement
under this Act may be used to purchase property,
buildings, and other facilities, and to lease
equipment, conveyances, and space within the United
States, without regard to sections 1341 and 3324 of
title 31, United States Code, 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), subsections (a) and (c) of
section 304 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 254 (a) and (c)), and
section 305 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 255);
(B) funds made available for export enforcement
under this Act may be used to establish or to acquire
proprietary corporations or business entities as part
of an undercover operation, and to operate such
corporations or business entities on a commercial
basis, without regard to sections 1341, 3324, and 9102
of title 31, United States Code;
(C) funds made available for export enforcement
under this Act and the proceeds from undercover
operations may be deposited in banks or other financial
institutions without regard to the provisions of
section 648 of title 18, United States Code, and
section 3302 of title 31, United States Code; and
(D) the proceeds from undercover operations may be
used to offset necessary and reasonable expenses
incurred in such operations without regard to the
provisions of section 3302 of title 31, United States
Code,
if the 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 has a net value of more than $250,000 and
is to be liquidated, sold, or otherwise disposed of, the
Director of OEE shall report the circumstances to the Secretary
and the Comptroller General of the United States as much in
advance of such disposition as the Director of the OEE (or the
Director's 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. Any property or equipment purchased
pursuant to paragraph (1) may be retained for subsequent use in
undercover operations under this section. When such property or
equipment is no longer needed, it shall be considered surplus
and disposed of as surplus government property.
(3) Deposit of proceeds.--As soon as the proceeds from an
OEE undercover investigative operation with respect to which an
action is authorized and carried out under this subsection are
no longer needed for the conduct of such operation, the
proceeds or the balance of the proceeds remaining at the time
shall be deposited into the Treasury of the United States as
miscellaneous receipts.
(4) Audit and report.--
(A) Audit.--The Director of OEE shall conduct a
detailed financial audit of each closed OEE undercover
investigative operation 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 Congress a report on the
results of the audit.
(B) Report.--The Secretary shall submit annually to
Congress a report, which may be included in the annual
report under section 701, 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
to the operation.
(5) Definitions.--For purposes of paragraph (4)--
(A) the term ``closed'', with respect to an
undercover investigative operation, refers to the
earliest point in time at which all criminal
proceedings (other than appeals) pursuant to the
investigative operation are concluded, or covert
activities pursuant to such operation are concluded,
whichever occurs later; and
(B) the terms ``undercover investigative
operation'' and ``undercover operation'' mean any
undercover investigative operation conducted by the
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 Congress required by
paragraph (4)(B).
(e) Wiretaps.--
(1) Authority.--Interceptions of communications in
accordance with section 2516 of title 18, United States Code,
are authorized to further the enforcement of this Act.
(2) Conforming amendment.--Section 2516(1) of title 18,
United States Code, is amended by adding at the end the
following:
``(q) any violation of, or conspiracy to violate, the
Export Administration Act of 2001 or the Export Administration
Act of 1979.''.
(f) Post-Shipment Verifications.--
(1) For certain exports and countries.--The Secretary shall
target post-shipment verifications--
(A) to exports involving the greatest risk to
national security; and
(B) to those countries identified by the Director
of Central Intelligence in the most recent report that
was submitted to Congress under section 721 of the
Intelligence Authorization Act for Fiscal Year 1997 on
the acquisition and supply by foreign countries of
dual-use items and other technology useful for the
development or production of weapons of mass
destruction.
(2) Conduct of verifications.--The Secretary may, with the
concurrence of the Secretary of State--
(A) utilize embassy personnel to conduct post-
shipment verifications; and
(B) establish guidelines and regulations allowing
United States persons to conduct those verifications.
(g) Refusal To Allow Post-Shipment Verification.--
(1) In general.--If an end user refuses to allow post-
shipment verification of a controlled item, the Secretary shall
deny a license for the export of any controlled item to such
end user until such post-shipment verification occurs.
(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 end user refusing to allow post-shipment
verification of a controlled item.
(3) Refusal by country.--(A) If a country with which the
United States has entered into an agreement providing for post-
shipment verifications repeatedly obstructs or otherwise denies
the post-shipment verification of controlled items, the
Secretary shall deny a license for the export of those items or
any substantially identical or directly competitive items or
class of items to all end users in that country until such
post-shipment verification is allowed.
(B) If the country in which an end user is located refuses
to allow post-shipment verification of a controlled item,
whether or not the United States has an agreement with that
country providing for post-shipment verifications, the
Secretary may deny a license for the export of that item or any
substantially identical or directly competitive item or class
of items to all end users in that country until such post-
shipment verification is allowed.
(h) Freight Forwarders Best Practices Program Authorization.--There
is authorized to be appropriated for the Department of Commerce
$3,500,000 and such sums as may be necessary to hire 20 additional
employees to assist United States freight forwarders and other
interested parties in developing and implementing, on a voluntary
basis, a ``best practices'' program to ensure that exports of
controlled items are undertaken in compliance with this Act.
(i) End Use Verification Authorization.--
(1) In general.--There is authorized to be appropriated for
the Department of Commerce $4,500,000 and such sums as may be
necessary to hire 10 additional overseas investigators to be
posted in the People's Republic of China, the Russian
Federation, the Hong Kong Special Administrative Region, the
Republic of India, Singapore, Egypt, and Taiwan, or any other
place the Secretary deems appropriate, for the purpose of
verifying the end use of high-risk, dual-use technology.
(2) Report.--Not later than 2 years after the date of
enactment of this Act and annually thereafter, the Department
shall, in its annual report to Congress on export controls,
include a report on the effectiveness of the end use
verification activities authorized under subsection (a). The
report shall include the following information:
(A) The activities of the overseas investigators of
the Department.
(B) The types of goods and technologies that were
subject to end use verification.
(C) The ability of the Department's investigators
to detect the illegal transfer of high risk, dual-use
goods and technologies.
(3) Enhancements.--In addition to the authorization
provided in paragraph (1), there is authorized to be
appropriated for the Department of Commerce $5,000,000 to
enhance its program for verifying the end use of items subject
to controls under this Act.
(j) Enhanced Cooperation With United States Customs Service.--
Consistent with the purposes of this Act, the Secretary is authorized
to undertake, in cooperation with the United States Customs Service,
such measures as may be necessary or required to enhance the ability of
the United States to detect unlawful exports and to enforce violations
of this Act.
(k) Reference to Enforcement.--For purposes of this section, a
reference to the enforcement of this Act or to a violation of this Act
includes a reference to the enforcement or a violation of any
regulation, license, or order issued under this Act.
(l) Authorization for Export Licensing and Enforcement Computer
System.--There is authorized to be appropriated for the Department
$5,000,000 and such other sums as may be necessary for planning,
design, and procurement of a computer system to replace the
Department's primary export licensing and computer enforcement system.
(m) Authorization for Bureau of Export Administration.--The
Secretary may authorize, without fiscal year limitation, the
expenditure of funds transferred to, paid to, received by, or made
available to the Bureau of Export Administration as a reimbursement in
accordance with section 9703 of title 31, United States Code (as added
by Public Law 102-393). The Secretary may also authorize, without
fiscal year limitation, the expenditure of funds transferred to, paid
to, received by, or made available to the Bureau of Export
Administration as a reimbursement from the Department of Justice Assets
Forfeiture Fund in accordance with section 524 of title 28, United
States Code. Such funds shall be deposited in an account and shall
remain available until expended.
(n) Amendments to Title 31.--
(1) Section 9703(a) of title 31, United States Code (as
added by Public Law 102-393) is amended by striking ``or the
United States Coast Guard'' and inserting ``, the United States
Coast Guard, or the Bureau of Export Administration of the
Department of Commerce''.
(2) Section 9703(a)(2)(B)(i) of title 31, United States
Code is amended (as added by Public Law 102-393)--
(A) by striking ``or'' at the end of subclause (I);
(B) by inserting ``or'' at the end of subclause
(II); and
(C) by inserting at the end, the following new
subclause:
``(III) a violation of the Export
Administration Act of 1979, the Export
Administration Act of 2001, or any
regulation, license, or order issued
under those Acts;''.
(3) Section 9703(p)(1) of title 31, United States Code (as
added by Public Law 102-393) is amended by adding at the end
the following: ``In addition, for purposes of this section, the
Bureau of Export Administration of the Department of Commerce
shall be considered to be a Department of the Treasury law
enforcement organization.''.
(o) Authorization for License Review Officers.--
(1) In general.--There is authorized to be appropriated to
the Department of Commerce $2,000,000 to hire additional
license review officers.
(2) Training.--There is authorized to be appropriated to
the Department of Commerce $2,000,000 to conduct professional
training of license review officers, auditors, and
investigators conducting post-shipment verification checks.
These funds shall be used to--
(A) train and certify, through a formal program,
new employees entering these positions for the first
time; and
(B) the ongoing professional training of
experienced employees on an as needed basis.
(p) Authorization.--
(1) In general.--There are authorized to be appropriated to
the Department of Commerce to carry out the purposes of this
Act--
(A) $72,000,000 for the fiscal year 2002, of which
no less than $27,701,000 shall be used for compliance
and enforcement activities;
(B) $73,000,000 for the fiscal year 2003, of which
no less than $28,312,000 shall be used for compliance
and enforcement activities;
(C) $74,000,000 for the fiscal year 2004, of which
no less than $28,939,000 shall be used for compliance
and enforcement activities;
(D) $76,000,000 for the fiscal year 2005, of which
no less than $29,582,000 shall be used for compliance
and enforcement activities; and
(E) such additional amounts, for each such fiscal
year, as may be necessary for increases in salary, pay,
retirement, other employee benefits authorized by law,
and other nondiscretionary costs.
(2) Termination.--The authority granted by this Act shall
terminate on December 31, 2005.
SEC. 507. ADMINISTRATIVE PROCEDURE.
(a) Exemptions From Administrative Procedure.--Except as provided
in this section, the functions exercised under this Act are excluded
from the operation of sections 551, 553 through 559, and 701 through
706 of title 5, United States Code.
(b) Procedures Relating to Civil Penalties and Sanctions.--
(1) Administrative procedures.--Any administrative sanction
imposed under section 503 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, except that the
review shall be initiated in the United States Court of Appeals
for the District of Columbia Circuit, which shall have
jurisdiction of the review.
(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 502 shall be made available for public
inspection and copying.
(c) Collection.--If any person fails to pay a civil penalty imposed
under section 503, the Secretary may ask the Attorney General to
commence a civil action in an appropriate district court of the United
States 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 Act, or any regulation,
order, or license issued under this Act, including any
diversion of goods or technology from an authorized end use or
end user, and in any case in which a criminal indictment has
been returned against a person alleging a violation of this Act
or any of the statutes listed in section 503, the Secretary
may, without a hearing, issue an order temporarily denying that
person's United States export privileges (hereafter in this
subsection referred to as a ``temporary denial order''). A
temporary denial order shall be effective for such period (not
in excess of 180 days) as the Secretary specifies in the order,
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 that constitutes or
would constitute a violation of this Act, or any
regulation, order, or license issued under this Act; or
(B) a criminal indictment has been returned against
the person subject to the order alleging a violation of
this Act or any of the statutes listed in section 503.
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 that constitutes or
would constitute a violation of this title, or any regulation,
order, or license issued under this Act, or whether a criminal
indictment has been returned against the person subject to the
order alleging a violation of this Act or of any of the
statutes listed in section 503. 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.
(e) Limitations on Review of Classified Information.--Any
classified information that is included in the administrative record
that is subject to review pursuant to subsection (b)(1) or (d)(3) may
be reviewed by the court only on an ex parte basis and in camera.
TITLE VI--EXPORT CONTROL AUTHORITY AND REGULATIONS
SEC. 601. EXPORT CONTROL AUTHORITY AND REGULATIONS.
(a) Export Control Authority.--
(1) In general.--Unless otherwise reserved to the President
or a department (other than the Department) or agency of the
United States, all power, authority, and discretion conferred
by this Act shall be exercised by the Secretary.
(2) Delegation of functions of the secretary.--The
Secretary may delegate any function under this Act, unless
otherwise provided, to the Under Secretary of Commerce for
Export Administration or to any other officer of the
Department.
(b) Under Secretary of Commerce; Assistant Secretaries.--
(1) Under secretary of commerce.--There shall be within the
Department an Under Secretary of Commerce for Export
Administration (in this section referred to as the ``Under
Secretary'') who shall be appointed by the President, by and
with the advice and consent of the Senate. The Under Secretary
shall carry out all functions of the Secretary under this Act
and other provisions of law relating to national security, as
the Secretary may delegate.
(2) Additional assistant secretaries.--In addition to the
number of Assistant Secretaries otherwise authorized for the
Department of Commerce, there shall be within the Department of
Commerce the following Assistant Secretaries of Commerce:
(A) An Assistant Secretary for Export
Administration who shall be appointed by the President,
by and with the advice and consent of the Senate, and
who shall assist the Secretary and the Under Secretary
in carrying out functions relating to export listing
and licensing.
(B) An Assistant Secretary for Export Enforcement
who shall be appointed by the President, by and with
the advice and consent of the Senate, and who shall
assist the Secretary and the Under Secretary in
carrying out functions relating to export enforcement.
(c) Issuance of Regulations.--
(1) In general.--The President and the Secretary may issue
such regulations as are necessary to carry out this Act. Any
such regulations the purpose of which is to carry out title II
or title III 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 control advisory committee
appointed under section 105(a) 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.
(2) Amendments to regulations.--If the Secretary proposes
to amend regulations issued under this Act, the Secretary shall
report to the Committee on Banking, Housing, and Urban Affairs
of the Senate and the Committee on International Relations 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 control
advisory committees appointed under section 105(a) in amending
regulations issued under this Act.
(3) Regulations on exports to foreign nationals.--The
Secretary, with the concurrence of the Secretary of State and
the Secretary of Defense, shall issue regulations to govern the
release of technology to a foreign national within the United
States and to establish appropriate procedures and entities to
ensure compliance with those regulations.
SEC. 602. CONFIDENTIALITY OF INFORMATION.
(a) Exemptions From Disclosure.--
(1) Information obtained on or before june 30, 1980.--
Except as otherwise provided by the third sentence of section
502(c)(2) and by section 507(b)(2), information obtained under
the Export Administration Act of 1979, or any predecessor
statute, on or before June 30, 1980, which is deemed
confidential, including Shipper's Export Declarations, or with
respect to which a request for confidential treatment is made
by the person furnishing such information, shall not be subject
to disclosure under section 552 of title 5, United States Code,
and such information shall not be published or disclosed,
unless the Secretary determines that the withholding thereof is
contrary to the national interest.
(2) Information obtained after june 30, 1980.--Except as
otherwise provided by the third sentence of section 502(c)(2)
and by section 507(b)(2), information obtained under this Act,
under the Export Administration Act of 1979 after June 30,
1980, or under the Export Administration regulations as
maintained and amended under the authority of the International
Emergency Economic Powers Act (50 U.S.C. 1706), 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 (or recordkeeping or reporting
requirement) under the Export Administration Act of 1979, under
this Act, or under the Export Administration regulations as
maintained and amended under the authority of the International
Emergency Economic Powers Act (50 U.S.C. 1706), including--
(A) the export license or other export
authorization itself,
(B) classification requests described in section
401(h),
(C) information or evidence obtained in the course
of any investigation by an officer or employee of the
Department of Commerce,
(D) information obtained or furnished under title V
in connection with any international agreement, treaty,
or other obligation, and
(E) information obtained in making the
determinations set forth in section 211 of this Act,
and information obtained in any investigation of an alleged
violation of section 502 of this Act except for information
required to be disclosed by section 502(c)(2) or 507(b)(2) of
this Act, 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.
(b) Information to Congress and GAO.--
(1) In general.--Nothing in this title shall be construed
as authorizing the withholding of information from Congress or
from the General Accounting Office.
(2) Availability to the congress--
(A) In general.--Any information obtained at any
time under this title or under any predecessor Act
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 Act or any
predecessor Act 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 subsection (a),
information described 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 Congress in accordance with this
paragraph, any such information which is submitted on a
confidential basis and from which any individual can be
identified.
(c) Information Exchange.--Notwithstanding subsection (a), the
Secretary and the Commissioner of Customs shall exchange licensing and
enforcement information with each other as necessary to facilitate
enforcement efforts and effective license decisions.
(d) Penalties for Disclosure of Confidential Information.--
(1) Disclosure prohibited.--No officer or employee of the
United States, or any department or agency thereof, may
publish, divulge, disclose, or make known in any manner or to
any extent not authorized by law any information that--
(A) the officer or employee 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 section.
(2) Criminal penalties.--Any such officer or employee who
knowingly violates paragraph (1) shall be fined not more than
$50,000, imprisoned not more than 1 year, or both, for each
violation of paragraph (1). Any such officer or employee may
also be removed from office or employment.
(3) Civil penalties; administrative sanctions.--The
Secretary may impose a civil penalty of not more than $5,000
for each violation of paragraph (1), except that no civil
penalty may be imposed on an officer or employee of the United
States, or any department or agency thereof, without the
concurrence of the department or agency employing such officer
or employee. Subsections 503(e), (g), (h), and (i) and 507(a),
(b), and (c) shall apply to actions to impose civil penalties
under this paragraph. At the request of the Secretary, a
department or agency employing an officer or employee
determined to have violated paragraph (1) shall deny that
officer or employee access to information exempt from
disclosure under this section. Any officer or employee who
commits a violation of paragraph (1) may also be removed from
office or employment by the employing agency. Any officer or
employee who commits such violation may also be removed from
office or employment for the violation of paragraph (1).
Sections 503 (e), (g), (h), and (i) and 507 (a), (b), and (c)
shall apply to violations described in this paragraph.
TITLE VII--EXPORTS OF SATELLITES
SEC. 701. APPLICABILITY.
This title applies with respect to exports, and all applications
for licenses to export, satellites and related items, notwithstanding
any other provision of this or any other Act.
SEC. 702. EXPORT CONTROLS ON SATELLITES AND RELATED ITEMS.
All satellites and related items that were on the Commerce Control
List of dual-use items in the Export Administration Regulations (15
C.F.R. part 730 et seq.) on October 16, 1998, shall, subject to
sections 703 and 704, be controlled under this Act.
SEC. 703. EXPORT LICENSE PROCEDURES.
(a) Referral to Other Departments and Agencies.--The Secretary
shall refer to the Secretary of Defense, the Secretary of State, and
the heads of other departments and agencies that the Secretary
considers appropriate, all applications for licenses to export
satellites and related items.
(b) Required Consultations With Intelligence Community.--The
Secretary, the Secretary of Defense, and the Secretary of State, as
appropriate, shall consult with the Director of Central Intelligence
during the review of any application for a license involving the
overseas launch of a commercial satellite of United States origin.
(c) Time Period for Referrals.--Within 30 days after the Secretary
refers an export license application under this section, each
department or agency to which an export license application has been
referred shall provide the Secretary with a recommendation to either
approve or deny the license application. A department or agency that
fails to provide a recommendation within that 30-day period shall be
deemed to have no objection to the decision of the Secretary on the
license application.
(d) Interagency Dispute Resolution Process.--If there is no
agreement among the Secretary, the Secretary of Defense, and the
Secretary of State to issue or deny a license to which this section
applies, then the Secretary shall refer the license application to an
interagency dispute resolution process established by the President.
The dispute resolution process shall be completed within a period of 60
days. A license pursuant to the application shall not be issued or
denied until the Secretary, the Secretary of Defense, and the Secretary
of State agree to issue or deny the license, or until the President
makes a determination to issue or deny the license.
SEC. 704. MANDATORY STATE DEPARTMENT REVIEW.
(a) Certain Defense Services.--The provision of defense services by
United States persons, including services or assistance provided during
technical interchange meetings, in connection with the launch of a
satellite from, or by nationals of, the People's Republic of China, are
subject to section 38 of the Arms Export Control Act.
(b) Notification to Congress.--At least 30 days before any export
license or any technical assistance agreement is approved under
subsection (a), the President shall transmit a certification with
respect to such export license or technical assistance agreement
pursuant to section 36(c) of the Arms Export Control Act, without
regard to the value limitation thereunder.
SEC. 705. DEFINITIONS.
In this title:
(1) Defense service.--The term ``defense service'' shall
have the meaning set forth in section 47 of the Arms Export
Control Act or regulations issued thereunder.
(2) Related items.--The term ``related items'' means the
satellite fuel, ground support equipment, test equipment,
payload adapter or interface hardware, replacement parts, and
nonembedded solid propellant orbit transfer engines described
in the report submitted to Congress by the Department of State
on February 6, 1998, pursuant to section 38(f) of the Arms
Export Control Act (22 U.S.C. 2778(f)), as well as systems,
components, parts, accessories, and associated equipment for
satellites, including ground control equipment.
(3) Satellite.--The term ``satellite'' means any commercial
communications satellite.
SEC. 706. CONFORMING AMENDMENTS.
(a) 1999 NDAA.--(1) Section 1513(a) of the Strom Thurmond National
Defense Authorization Act for Fiscal Year 1999 (22 U.S.C. 2778 note) is
repealed.
(2) Section 1513(c) of that Act is amended by striking ``(1)
Subsection (a)'' and all that follows through ``(2)''.
(3) Section 1514(a)(6) of that Act is amended by striking
``Secretary of State'' and inserting ``Secretary of Commerce and the
Secretary of State''.
(b) 2000 NDAA.--(1) Section 1404 of the National Defense
Authorization Act for Fiscal Year 2000 (22 U.S.C. 2778 note) is amended
in the matter preceding paragraph (1), by striking ``Secretary of
State'' and inserting ``Secretary of Commerce or the Secretary of
State, as the case may be,''.
(2) Section 1410 of that Act, and the item relating to that section
in the table of contents of that Act, are repealed.
(3) Section 1411(a) of that Act is amended in the first sentence by
striking ``involving the overseas launch of a commercial satellite of
United States origin'' and inserting ``to provide defense services
referred to in section 704 of the Export Administration Act of 2001, in
connection with the launch of a satellite''.
(4) Section 1412(d) of that Act is amended by striking ``Secretary
of State and'' and inserting ``Secretary of Commerce, the Secretary of
State, and''.
(c) Additional Conforming Amendments.--(1) Section 1309 of the
Admiral James W. Nance and Meg Donovan Foreign Relations Authorization
Act, Fiscal Years 2000 and 2001 (as enacted by Public Law 106-113; 113
Stat. 1501A-460) is amended--
(A) by amending the section heading to read as follows:
``SEC. 1309. OFFICE OF DEFENSE TRADE CONTROLS.'';
(B) by striking subsections (a) and (c); and
(C) in subsection (b), by striking ``(b) Financial and
Personnel Resources.--''.
(2) The table of contents of that Act is amended by striking the
item relating to section 1309 and inserting the following:
``Sec. 1309. Office of Defense Trade Controls.''.
SEC. 707. EFFECTIVE DATE.
(a) In General.--This title and the amendments made by this Act
shall take effect on the date of the enactment of this Act, and shall
apply to any export license application made under the Arms Export
Control Act before such date of enactment which is pending on such
date, and to any export license application made on or after such date.
(b) Transfer of Pending Applications.--Any export license
application made under the Arms Export Control Act before the date of
the enactment of this Act, to which section 702 of this Act applies and
which is pending on such date of enactment, shall be transferred to the
Department of Commerce upon the enactment of this Act.
SEC. 708. EFFECT ON EXISTING LAW.
Nothing in this title shall affect the continued application of
section 36 or 38 of the Arms Export Control Act, or any other provision
of that Act, to the export or other provision of defense services
related to items in Category 4 of the United States Munitions List.
TITLE VIII--MISCELLANEOUS PROVISIONS
SEC. 801. ANNUAL REPORT.
(a) Annual Report.--Not later than February 1 of each year, the
Secretary shall submit to Congress a report on the administration of
this Act during the fiscal year ending September 30 of the preceding
calendar year. All Federal agencies shall cooperate fully with the
Secretary in providing information for each such report.
(b) Report Elements.--Each such report shall include in detail--
(1) a description of the implementation of the export
control policies established by this Act, including any
delegations of authority by the President and any other changes
in the exercise of delegated authority;
(2) a description of the changes to and the year-end status
of country tiering and the Control List;
(3) a description of the petitions filed and the
determinations made with respect to foreign availability and
mass-market status, the set-asides of foreign availability and
mass-market status determinations, and negotiations to
eliminate foreign availability;
(4) a description of any enhanced control imposed on an
item pursuant to section 201(d);
(5) a description of the regulations issued under this Act;
(6) a description of organizational and procedural changes
undertaken in furtherance of this Act;
(7) a description of the enforcement activities,
violations, and sanctions imposed under this Act;
(8) a statistical summary of all applications and
notifications, including--
(A) the number of applications and notifications
pending review at the beginning of the fiscal year;
(B) the number of notifications returned and
subject to full license procedure;
(C) the number of notifications with no action
required;
(D) the number of applications that were approved,
denied, or withdrawn, and the number of applications
where final action was taken; and
(E) the number of applications and notifications
pending review at the end of the fiscal year;
(9) summary of export license data by export identification
code and dollar value by country;
(10) an identification of processing time by--
(A) overall average, and
(B) top 25 export identification codes;
(11) an assessment of the effectiveness of multilateral
regimes, and a description of negotiations regarding export
controls;
(12) a description of the significant differences between
the export control requirements of the United States and those
of other multilateral control regime members, and the specific
differences between United States requirements and those of
other significant supplier countries;
(13) an assessment of the costs of export controls;
(14) a description of the progress made toward achieving
the goals established for the Department dealing with export
controls under the Government Performance Results Act;
(15) an analysis and risk assessment of dual-use United
States-origin items useful for the development or production of
weapons of mass destruction acquired by countries identified by
the Director of the Central Intelligence in the most recent
report submitted to Congress under section 721 of the
Intelligence Authorization Act for Fiscal Year 1997; and
(16) any other reports required by this Act to be submitted
to the Committee on Banking, Housing, and Urban Affairs of the
Senate and the Committee on International Relations of the
House of Representatives.
(c) Federal Register Publication Requirements.--Whenever
information under this Act is required to be published in the Federal
Register, such information shall, in addition, be posted on the
Department of Commerce or other appropriate government website.
SEC. 802. RELATIONSHIP TO THE ARMS EXPORT CONTROL ACT.
Nothing in this Act shall be construed to alter or affect--
(1) any provision of the Arms Export Control Act; or
(2) any authority delegated by the President to the
Secretary of State under the Arms Export Control Act.
SEC. 803. ENHANCEMENT OF CONGRESSIONAL OVERSIGHT OF NUCLEAR TRANSFERS
TO NORTH KOREA.
The North Korea Threat Reduction Act of 1999 (subtitle B of title
VIII of division A of H.R. 3427, as enacted into law by section
1000(a)(7) of Public Law 106-113, and as contained in appendix G to
such Public Law) is amended in section 822(a)--
(1) by redesignating paragraphs (1) through (7) as
subparagraphs (A) through (G), respectively, and by indenting
each such subparagraph 2 ems to the right;
(2) by striking ``until the President'' and inserting
``until--
``(1) the President'';
(3) at the end of subparagraph (G) (as redesignated in
paragraph (1)) by striking the period and inserting ``; and
``(2) a joint resolution of the two Houses of Congress is
enacted into law--
``(A) the matter after the resolving clause of
which is as follows: `That the Congress hereby concurs
in the determination and report of the President
relating to compliance by North Korea with certain
international obligations transmitted pursuant to
section 822(a)(1) of the North Korea Threat Reduction
Act of 1999.';
``(B) which does not have a preamble; and
``(C) the title of which is as follows: `Joint
Resolution relating to compliance by North Korea with
certain international obligations pursuant to the North
Korea Threat Reduction Act of 1999.'.''; and
(4) by striking ``such agreement,'' both places it appears
and inserting in both places ``such agreement (or that are
controlled under the Export Trigger List of the Nuclear
Suppliers Group),''.
SEC. 804. PROCEDURES FOR CONSIDERATION OF JOINT RESOLUTIONS.
The North Korea Threat Reduction Act of 1999 is amended--
(1) by redesignating section 823, and the item relating to
that section in the table of contents, as section 824;
(2) by inserting after section 822 the following new
section:
``SEC. 823. PROCEDURES FOR CONSIDERATION OF JOINT RESOLUTION DESCRIBED
IN SECTION 822(A)(2).
``(a) Rulemaking.--The provisions of this section are enacted by
the Congress--
``(1) as an exercise of the rulemaking power of the House
of Representatives and the Senate, respectively, and, as such,
shall be considered as part of the rules of either House and
shall supersede other rules only to the extent they are
inconsistent therewith; and
``(2) with full recognition of the constitutional right of
either House to change the rules so far as they relate to the
procedures of that House at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
``(b) Introduction and Referral.--
``(1) Introduction.--A joint resolution described in
section 822(a)(2)--
``(A) shall be introduced in the House of
Representatives by the majority leader or minority
leader or by a Member of the House of Representatives
designated by the majority leader or minority leader;
and
``(B) shall be introduced in the Senate by the
majority leader or minority leader or a Member of the
Senate designated by the majority leader or minority
leader.
``(2) Referral.--The joint resolution shall be referred to
the Committee on International Relations of the House of
Representatives and the Committee on Foreign Relations of the
Senate.
``(c) Discharge of Committees.--If a committee to which a joint
resolution described in section 822(a)(2) is referred has not reported
such joint resolution by the end of 30 days beginning on the date of
its introduction, such committee shall be discharged from further
consideration of such joint resolution, and such joint resolution shall
be placed on the appropriate calendar of the House involved.
``(d) Floor Consideration in the House of Representatives.--
``(1) In general.--On or after the third calendar day
(excluding Saturdays, Sundays, or legal holidays, except when
the House of Representatives is in session on such a day) after
the date on which the committee to which a joint resolution
described in section 822(a)(2) is referred has reported, or has
been discharged from further consideration of, such a joint
resolution, it shall be in order for any Member of the House to
move to proceed to the consideration of the joint resolution. A
Member of the House may make the motion only on the day after
the calendar day on which the Member announces to the House the
Member's intention to do so. Such motion is privileged and is
not debatable. The motion is not subject to amendment or to a
motion to postpone. A motion to reconsider the vote by which
the motion is agreed to shall not be in order. If a motion to
proceed to the consideration of the joint resolution is agreed
to, the House shall immediately proceed to consideration of the
joint resolution which shall remain the unfinished business
until disposed of.
``(2) Debate.--Debate on a joint resolution described in
section 822(a)(2), and on all debatable motions and appeals in
connection therewith, shall be limited to not more than two
hours, which shall be divided equally between those favoring
and those opposing the joint resolution. An amendment to the
joint resolution is not in order. A motion further to limit
debate is in order and is not debatable. A motion to table, a
motion to postpone, or a motion to recommit the joint
resolution is not in order. A motion to reconsider the vote by
which the joint resolution is agreed to or disagreed to is not
in order.
``(3) Appeals.--Appeals from the decisions of the Chair to
the procedure relating to a joint resolution described in
section 822(a)(2) shall be decided without debate.
``(e) Floor Consideration in the Senate.--Any joint resolution
described in section 822(a)(2) 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.
``(f) Consideration by the Other House.--If, before the passage by
one House of a joint resolution of that House described in section
822(a)(2), that House receives from the other House a joint resolution
described in section 822(a)(2), then the following procedures shall
apply:
``(1) The joint resolution of the other House shall not be
referred to a committee and may not be considered in the House
receiving it except in the case of final passage as provided in
paragraph (2)(B).
``(2) With respect to a joint resolution described in
section 822(a)(2) of the House receiving the joint resolution--
``(A) the procedure in that House shall be the same
as if no joint resolution had been received from the
other House; but
``(B) the vote on final passage shall be on the
joint resolution of the other House.
``(3) Upon disposition of the joint resolution received
from the other House, it shall no longer be in order to
consider the joint resolution that originated in the receiving
House.
``(g) Computation of Days.--In the computation of the period of 30
days referred to in subsection (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.''; and
(3) by inserting after the item relating to section 822 in
the table of contents the following new item:
``Sec. 823. Procedures for consideration of joint resolution described
in section 822(a)(2).''.
SEC. 805. RECOMMENDATIONS OF THE JUDICIAL REVIEW COMMISSION ON FOREIGN
ASSET CONTROL.
In accordance with the findings of the Judicial Review Commission
on Foreign Asset Control contained in the report of the Commission
submitted to Congress in January 2001 under section 810(g) of the
Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1908(g)), the
President shall direct the Office of Foreign Assets Control of the
Department of the Treasury to--
(1) publish proposed regulations on sanctions in order to
provide public notice of, and invite public comment on, the
proposed regulations, unless exigent circumstances are present;
(2) provide interpretations and guidelines to accompany the
issuance of regulations; and
(3) take steps to expand and enhance the transparency of
its operations and decisionmaking standards by publishing its
licensing and civil penalty decisions in unclassified form and
by providing answers to ``frequently asked questions'' on its
website.
SEC. 806. IMPROVEMENTS TO THE AUTOMATED EXPORT SYSTEM.
(a) Mandatory Filing.--The Secretary, with the concurrence of the
Secretary of State and the Secretary of the Treasury, shall publish
regulations in the Federal Register to require, upon the effective date
of those regulations, the mandatory filing through the Automated Export
System for the remainder of exports that were not covered by
regulations issued pursuant to section 1252(b) of the Security
Assistance Act of 1999 (113 Stat. 1501A-506), as enacted into law by
section 1000(a)(7) of Public Law 106-113.
(b) Requirement for Information Sharing.--The Secretary of State
shall conclude an information sharing arrangement with the heads of
United States Customs Service and the Census Bureau to adjust the
Automated Export System to parallel information currently collected by
the Department of State.
(c) Secretary of Treasury Functions.--Section 303 of title 13,
United States Code, is amended by striking ``, other than by mail,''.
(d) Filing Export Information, Delayed Filings, Penalties for
Failure To File.--Section 304 of title 13, United States Code, is
amended--
(1) in subsection (a)--
(A) in the first sentence, by striking ``the penal
sum of $1,000'' and inserting ``a penal sum of
$10,000''; and
(B) in the third sentence, by striking ``a penalty
not to exceed $100 for each day's delinquency beyond
the prescribed period, but not more than $1,000, shall
be exacted'' and inserting ``the Secretary of Commerce
(and officers and employees of the Department of
Commerce designated by the Secretary) may impose a
civil penalty not to exceed $1,000 for each day's
delinquency beyond the prescribed period, but not more
than $10,000 per violation'';
(2) by redesignating subsection (b) as subsection (c); and
(3) by inserting after subsection (a) the following:
``(b) Any person, other than a person described in subsection
(a), required to submit export information, shall file such information
in accordance with any rule, regulation, or order issued pursuant to
this chapter. In the event any such information or reports are not
filed within such prescribed period, the Secretary of Commerce (and
officers and employees of the Department of Commerce designated by the
Secretary) may impose a civil penalty not to exceed $1,000 for each
day's delinquency beyond the prescribed period, but not more than
$10,000 per violation.''.
(e) Additional Penalties.--
(1) In general.--Section 305 of title 13, United States
Code, is amended to read as follows:
``Sec. 305. Penalties for unlawful export information activities
``(a) Criminal Penalties.--(1) Any person who knowingly fails to
file or knowingly submits false or misleading export information
through the Shippers Export Declaration (SED) (or any successor
document) or the Automated Export System (AES) shall be subject to a
fine not to exceed $10,000 per violation or imprisonment for not more
than 5 years, or both.
``(2) Any person who knowingly reports any information on or uses
the SED or the AES to further any illegal activity shall be subject to
a fine not to exceed $10,000 per violation or imprisonment for not more
than 5 years, or both.
``(3) Any person who is convicted under this subsection 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
goods 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.
``(b) Civil Penalties.--The Secretary (and officers and employees
of the Department of Commerce specifically designated by the Secretary)
may impose a civil penalty not to exceed $10,000 per violation on any
person violating the provisions of this chapter or any rule,
regulation, or order issued thereunder, except as provided in section
304. Such penalty may be in addition to any other penalty imposed by
law.
``(c) Civil Penalty Procedure.--(1) When a civil penalty is sought
for a violation of this section or of section 304, the charged party is
entitled to receive a formal complaint specifying the charges and, at
his or her request, to contest the charges in a hearing before an
administrative law judge. Any such hearing shall be conducted in
accordance with sections 556 and 557 of title 5.
``(2) If any person fails to pay a civil penalty imposed under this
chapter, the Secretary may ask the Attorney General to commence a civil
action in an appropriate district court of the United States 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 action, the validity, amount, and appropriateness of such penalty
shall not be subject to review.
``(3) The Secretary may remit or mitigate any penalties imposed
under paragraph (1) if, in his or her opinion--
``(A) the penalties were incurred without willful
negligence or fraud; or
``(B) other circumstances exist that justify a remission or
mitigation.
``(4) If, pursuant to section 306, the Secretary delegates
functions under this section to another agency, the provisions of law
of that agency relating to penalty assessment, remission or mitigation
of such penalties, collection of such penalties, and limitations of
actions and compromise of claims, shall apply.
``(5) Any amount paid in satisfaction of a civil penalty imposed
under this section or section 304 shall be deposited into the general
fund of the Treasury and credited as miscellaneous receipts.
``(d) Enforcement.--(1) The Secretary of Commerce may designate
officers or employees of the Office of Export Enforcement to conduct
investigations pursuant to this chapter. In conducting such
investigations, those officers or employees may, to the extent
necessary or appropriate to the enforcement of this chapter, exercise
such authorities as are conferred upon them by other laws of the United
States, subject to policies and procedures approved by the Attorney
General.
``(2) The Commissioner of Customs may designate officers or
employees of the Customs Service to enforce the provisions of this
chapter, or to conduct investigations pursuant to this chapter.
``(e) Regulations.--The Secretary of Commerce shall promulgate
regulations for the implementation and enforcement of this section.
``(f) Exemption.--The criminal fines provided for in this section
are exempt from the provisions of section 3571 of title 18.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 9 of title 13, United States Code, is
amended by striking the item relating to section 305 and
inserting the following:
``305. Penalties for unlawful export information activities.''.
SEC. 807. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Repeal.--The Export Administration Act of 1979 (50 U.S.C. App.
2401 et seq.) is repealed.
(b) Energy Policy and Conservation Act.--
(1) Section 103 of the Energy Policy and Conservation Act
(42 U.S.C. 6212), and the item relating to that section in the
table of contents for that Act, are repealed.
(2) Section 251(d) of the Energy Policy and Conservation
Act (42 U.S.C. 6271(d)) is repealed.
(c) Alaska Natural Gas Transportation Act.--Section 12 of the
Alaska Natural Gas Transportation Act of 1976 (15 U.S.C. 719j) is
repealed.
(d) Mineral Leasing Act.--Section 28(u) of the Mineral Leasing Act
(30 U.S.C. 185(u)) is repealed.
(e) Exports of Alaskan North Slope Oil.--Section 28(s) of the
Mineral Leasing Act (30 U.S.C. 185(s)) is repealed.
(f) Disposition of Certain Naval Petroleum Reserve Products.--
Section 7430(e) of title 10, United States Code, is repealed.
(g) Outer Continental Shelf Lands Act.--Section 28 of the Outer
Continental Shelf Lands Act (43 U.S.C. 1354) is repealed.
(h) Arms Export Control Act.--The Arms Export Control Act is
amended as follows:
(1) Section 36(g) (22 U.S.C. 2776(g)) is amended by
striking ``12(c) of the Export Administration Act of 1979'' and
inserting ``602(c) of the Export Administration Act of 2001''.
(2) Section 38 (22 U.S.C. 2778) is amended--
(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
503 of the Export Administration Act of 2001,
by subsections (a) and (b) of section 506 of
that Act, and by section 602 of that Act,'';
(ii) in the first sentence, by striking
``11(c)(2)(B)'' and inserting ``507(b)(1)'';
and
(iii) in the third sentence, by striking
``11(c) of the Export Administration Act of
1979'' and inserting ``503(c) of the Export
Administration Act of 2001'';
(B) in subsection (f)(1), by striking ``1979'' and
inserting ``2001''; and
(C) in subsection (g)(1)(A)(ii), by inserting ``or
section 503 of the Export Administration Act of 2001''
after ``1979''.
(3) Section 39A(c) (22 U.S.C. 2779a(c)) is amended--
(A) by striking ``subsections (c),'' and all that
follows through ``12(a) of such Act'' and inserting
``subsections (c), (d), and (e) of section 503, section
507(c), and subsections (a) and (b) of section 506, of
the Export Administration Act of 2001'';
(B) by striking ``11(c)(2)(B) of such Act'' and
inserting ``507(b)(1) of that Act''; and
(C) by striking ``11(c)'' and inserting ``503(c)''.
(4) Section 40(k) (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
``503(b), 503(c), 503(e), 506(a), and 506(b) of the
Export Administration Act of 2001'';
(B) by striking ``11(c)(2)(B)'' and inserting
``507(b)(1)''; and
(C) by striking ``11(c)'' and inserting ``503(c)''.
(5) Section 71(a) (22 U.S.C. 2797(a)) is amended by
striking ``section 6(l) of the Export Administration Act of
1979'' and inserting ``title II or III of the Export
Administration Act of 2001''.
(6) Section 72 (22 U.S.C. 2797a) is amended--
(A) in subsection (a)(1)(A), by striking ``section
5 or 6 of the Export Administration Act of 1979 (50
U.S.C. App. 2404, 2405)'' and inserting ``title II or
III of the Export Administration Act of 2001''; and
(B) in subsection (c), by striking ``6(j)(1)(A) of
the Export Administration Act of 1979'' and inserting
``310(a)(1) of the Export Administration Act of 2001''.
(7) Section 73 (22 U.S.C. 2797b) is amended--
(A) in subsection (a)(1), by striking ``11B(b)(1)
of the Export Administration Act of 1979'' and
inserting ``504(b)(1) of the Export Administration Act
of 2001''; and
(B) in subsection (f), by striking ``6(j)(1)(A) of
the Export Administration Act of 1979'' and inserting
``section 310(a)(1) of the Export Administration Act of
2001''.
(8) Section 74(a)(6) (22 U.S.C. 2797c(a)(6)) is amended by
striking ``16(2) of the Export Administration Act of 1979 (50
U.S.C. App. 2415(2))'' and inserting ``2(20) of the Export
Administration Act of 2001''.
(9) Section 81(a) (22 U.S.C. 2798(a)) is amended--
(A) in paragraph (1)(C), by striking ``1979'' and
inserting ``2001''; and
(B) in paragraph (2)(B), by striking ``section 6(j)
of the Export Administration Act of 1979 (50 U.S.C.
2405(j))'' and inserting ``section 310 of the Export
Administration Act of 2001''.
(10) Section 102(b)(2)(G) (22 U.S.C. 2799aa-1(b)(2)(G)) is
amended by striking ``section 6 of the Export Administration
Act of 1979'' and inserting ``title III of the Export
Administration Act of 2001''.
(i) Other Provisions of Law.--
(1) Section 5(b)(4) of the Trading with the Enemy Act (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 ``titles II and III of the Export
Administration Act of 2001''.
(2)(A) Section 502B(a)(2) of the Foreign Assistance Act of
1961 (22 U.S.C. 2304(a)(2)) is amended in the second sentence--
(i) by striking ``Export Administration Act of
1979'' the first place it appears and inserting
``Export Administration Act of 2001''; and
(ii) by striking ``Act of 1979)'' and inserting
``Act of 2001)''.
(B) Section 620E(h) of the Foreign Assistance Act of 1961
(22 U.S.C. 2375(h)) is amended by striking ``11B of the Export
Administration Act of 1979'' and inserting ``504 of the Export
Administration Act of 2001''.
(C) Section 620H(a)(1) of the Foreign Assistance Act of
1961 (22 U.S.C. 2378(a)(1)) is amended by striking ``section
6(j) of the Export Administration Act of 1979 (50 U.S.C. App.
2405(j))'' and inserting ``section 310 of the Export
Administration Act of 2001''.
(3) Section 565 of the Foreign Relations Authorization Act,
Fiscal Years 1994 and 1995 (22 U.S.C. 2679c) is amended--
(A) in subsection (a)--
(i) in paragraph (2)--
(I) in subparagraph (A), by
striking ``8(a) of the Export
Administration Act of 1979 (50 U.S.C.
App. 2407(a))'' and inserting ``502(b)
of the Export Administration Act of
2001'';
(II) in subparagraph (A), by
striking ``8(a)(1) of such Act'' and
inserting ``502(b)(1) of that Act'';
and
(III) in subparagraph (B), by
striking ``16(2) of the Export
Administration Act of 1979 (50 U.S.C.
App. 2415)'' and inserting ``2(20) of
the Export Administration Act of
2001''; and
(ii) in paragraph (3), by striking ``8(a)
of the Export Administration Act of 1979 (50
U.S.C. App. 2407(a))'' and inserting ``502(b)
of the Export Administration Act of 2001''; and
(B) in subsection (c)--
(i) in paragraph (1), in subsection (b)(1)
of the quoted material, by striking ``8(a) of
the Export Administration Act of 1979 (50
U.S.C. App. 2407(a))'' and inserting ``502(b)
of the Export Administration Act of 2001''; and
(ii) in paragraph (3), by striking ``8(a)
of the Export Administration Act of 1979 (50
U.S.C. App. 2407(a))'' and inserting ``502(b)
of the Export Administration Act of 2001''.
(4) Section 140(a) of the Foreign Relations Authorization
Act, Fiscal Years 1988 and 1989 (22 U.S.C. 2656f(a)) is
amended--
(A) in paragraph (1)(B), by inserting ``or section
310 of the Export Administration Act of 2001'' after
``Act of 1979''; and
(B) in paragraph (2), by inserting ``or section 310
of the Export Administration Act of 2001'' after ``6(j)
of the Export Administration Act of 1979''.
(5)(A) Section 36(j)(1)(B) of the State Department Basic
Authorities Act of 1956 (22 U.S.C. 2708(j)(1)(B)) is amended by
striking ``section 6(j)(1)(A) of the Export Administration Act
of 1979 (50 U.S.C. App. 2405(j)(1)(A))'' and inserting
``section 310(a)(1) of the Export Administration Act of 2001''.
(B) Section 40(e)(1) of the State Department Basic
Authorities Act of 1956 (22 U.S.C. 2712(e)(1)) is amended by
striking ``section 6(j)(1) of the Export Administration Act of
1979'' and inserting ``section 310 of the Export Administration
Act of 2001''.
(C) Section 205(d)(4)(B) of the State Department Basic
Authorities Act of 1956 (22 U.S.C. 305(d)(4)(B)) is amended by
striking ``section 6(j) of the Export Administration Act of
1979'' and inserting ``section 310 of the Export Administration
Act of 2001''.
(6) Section 528(a) of the Foreign Operations, Export
Financing, and Related Programs Appropriations Act, 1994
(Public Law 103-87) is amended by striking ``6(j) of the Export
Administration Act of 1979'' and inserting ``310 of the Export
Administration Act of 2001''.
(7) Section 589(a) of the Foreign Operations, Export
Financing, and Related Programs Appropriations Act, 1997
(Public Law 104-208) is amended by striking ``6(j) of the
Export Administration Act of 1979'' and inserting ``310 of the
Export Administration Act of 2001''.
(8) 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
2001''.
(9) 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 2001''.
(10)(A) Section 405(a)(13)(A) of the International
Religious Freedom Act of 1998 (22 U.S.C. 6445(a)(13)(A)) is
amended by striking ``1979'' and inserting ``2001''.
(B) Section 423(a) of that Act (22 U.S.C. 6461(a)) is
amended by striking ``6(n) of the Export Administration Act of
1979 (22 U.S.C. App. 2405(n))'' and inserting ``311 of the
Export Administration Act of 2001''.
(11)(A) Section 103(e)(2)(B)(ii) of the Chemical Weapons
Convention Implementation Act of 1998 (22 U.S.C.
6713(e)(2)(B)(ii)) is amended to read as follows:
``(ii) Sanctions under export
administration act of 2001.--The authorities of
title III of the Export Administration Act of
2001 shall be used to prohibit the export to a
person described in subparagraph (A) of any
items on the National Security Control List
established under section 202(a) of that
Act.''.
(B) Section 103(e)(3)(B)(iv) of the Chemical Weapons
Convention Implementation Act of 1998 (22 U.S.C.
6713(e)(3)(B)(iv)) is amended to read as follows:
``(iv) Sanctions under export
administration act of 2001.--The authorities of
title III of the Export Administration Act of
2001 shall be used to prohibit the export to a
country described in subparagraph (A) of any
items on the National Security Control List
established under section 202(a) of that
Act.''.
(12) Section 1423(b)(1) of the Defense Against Weapons of
Mass Destruction Act of 1996 (50 U.S.C. 2332(b)(1)) is amended
by striking ``11 of the Export Administration Act of 1979 (50
U.S.C. App. 2410)'' and inserting ``503 of the Export
Administration Act of 2001''.
(13) Section 586G of the Iraq Sanctions Act of 1990 (50
U.S.C. 1701 note) is amended--
(A) by amending subsection (a)(3) to read as
follows:
``(3) Exports of certain commodities and technology.--The
authorities of titles II and III of the Export Administration
Act of 2001 shall be used to prohibit the export to Iraq of any
commodities or technology on the Commerce Control List
established under that Act.''; and
(B) in subsection (b) by striking ``the date
described in subsection (m)(1)'' and all that follows
through ``shall be deemed'' and inserting ``the dates
described in section 301(d)(1) of the Export
Administration Act of 2001 shall be deemed''.
(14) Section 601(a) of the Nuclear Non-Proliferation Act of
1978 (22 U.S.C. 3281(a)) is amended--
(A) in paragraph (6)--
(i) in subparagraph (A)--
(I) in clause (iii), by striking
``1979'' and inserting ``2001''; and
(II) in clause (iv), by adding
``and'' after the semicolon; and
(ii) in subparagraph (C)--
(I) by redesignating such
subparagraph as paragraph (7) and
aligning the text with the text of
paragraph (6) that precedes
subparagraph (A); and
(II) by inserting ``a description
of'' before ``the progress''; and
(B) in the matter that appears following paragraph
(7), as so redesignated--
(i) by striking ``paragraph (6)'' and
inserting ``paragraphs (6) and (7)''; and
(ii) by striking ``12(c)(1) of the Export
Administration Act of 1979'' and inserting
``602(a) of the Export Administration Act of
2001''.
(15) Section 304(a)(2) of the Chemical and Biological
Weapons Control and Warfare Elimination Act of 1991 (22 U.S.C.
5603(a)(2)) is amended by striking ``1979'' and inserting
``2001''.
(16) Section 307 of the Chemical and Biological Weapons
Control and Warfare Elimination Act of 1991 (22 U.S.C. 5605) is
amended--
(A) by amending paragraph (5) of subsection (a) to
read as follows:
``(5) Exports of certain goods and technology.--The
authorities of title III of the Export Administration Act of
2001 shall be used to prohibit the export to that country of
any goods or technology on the National Security Control List
established under section 202 of that Act.'';
(B) in subsection (b)(2)(C) by striking ``section 6
of the Export Administration Act of 1979'' and
inserting ``title III of the Export Administration Act
of 2001''; and
(C) in subsection (e)(1)(B)--
(i) in the first sentence, by striking
``subsection (p) of section 6 of the Export
Administration Act of 1979 (50 U.S.C. App.
2405), as that subsection is so redesignated by
section 304(b) of this title, which are
applicable to exports prohibited under section
6 of that Act'' and inserting ``section 301(d)
of the Export Administration Act of 2001, which
are applicable to exports prohibited under
title III of that Act''; and
(ii) in the last sentence, by striking ``a
breach of the peace that poses a serious and
direct threat to the strategic interest of the
United States, within the meaning of
subparagraph (A) of section 6(p) of that Act''
and inserting ``a serious threat to a foreign
policy interest of the United States, within
the meaning of section 301(d)(2)(A) of the
Export Administration Act of 2001''.
(17) Section 1705(c)(1) of the Cuban Democracy Act of 1992
(22 U.S.C. 6004(c)(1)) is amended by striking ``5(m) of the
Export Administration Act of 1979'' and inserting ``204(a) of
the Export Administration Act of 2001''.
(18)(A) Section 6(2)(i) of the Iran and Libya Sanctions Act
of 1996 (50 U.S.C. 1701 note) is amended by striking ``1979''
and inserting ``2001''.
(B) Section 8(a)(2) of the Iran and Libya Sanctions Act of
1996 is amended by striking ``6(j) of the Export Administration
Act of 1979'' and inserting ``310 of the Export Administration
Act of 2001''.
(C) Section 14 of the Iran and Libya Sanctions Act of 1996
is amended--
(i) in paragraph (3), by striking ``(50 U.S.C. App.
2410a(e)(1))'' and inserting ``(as in effect on August
20, 2001)'';
(ii) in paragraph (6), by striking ``(50 U.S.C.
App. 2410a(e)(2))'' and inserting ``(as in effect on
August 20, 2001)''; and
(iii) in paragraph (8), by striking ``(50 U.S.C.
App. 2415)'' and inserting ``(as in effect on August
20, 2001)''.
(19) Section 1133(a)(3) of the Food Security Act of 1985 (7
U.S.C. 1736y(3)) is amended by striking ``Export Administration
Act'' and inserting ``International Emergency Economic Powers
Act or in time of war under the Trading with the Enemy Act''.
(20) Section 208(a) of the Agricultural Trade Suspension
Adjustment Act of 1980 (7 U.S.C. 4001(a)) is amended by
striking ``for reasons of national security or foreign policy
under the Export Administration Act of 1979'' and inserting
``under title II or III of the Export Administration Act of
2001''.
(21) Section 411(a)(1) of the Agricultural Trade Act of
1978 (7 U.S.C. 5671(a)(1)) is amended by striking ``for reasons
of national security or foreign policy under the Export
Administration Act of 1979 (50 U.S.C. App. 2401 et seq.)'' and
inserting ``under title II or III of the Export Administration
Act of 2001''.
(22) Section 302(e) of the Bill Emerson Humanitarian Trust
Act (7 U.S.C. 1736f-1(e)) is amended--
(A) by striking ``shall not be--
``(1) considered''
and inserting ``shall not be considered''; and
(B) by striking ``; and
``(2) subject''
and all that follows through the end and inserting a
period.
(23)(A) Section 951(e)(2)(B) of title 18, United States
Code, is amended by striking ``or under section 11 of the
Export Administration Act of 1979'' and inserting ``, under
section 11 of the Export Administration Act of 1979 (prior to
its repeal by the Export Administration Act of 2001), or under
section 503 of the Export Administration Act of 2001''.
(B) Section 1956(c)(7)(D) of title 18, United States Code,
is amended by striking ``section 11 (relating to violations) of
the Export Administration Act of 1979'' and inserting ``section
503 (relating to penalties) of the Export Administration Act of
2001''.
(C) Section 2332d(a) of title 18, United States Code, is
amended by striking ``section 6(j) of the Export Administration
Act (50 U.S.C. App. 2405)'' and inserting ``section 310 of the
Export Administration Act of 2001''.
(24)(A) Section 130(a) of title 10, United States Code, is
amended by striking ``1979 (50 U.S.C. App. 2401-2420)'' and
inserting ``2001''.
(B) Section 2249a(a)(1) of title 10, United States Code, is
amended by striking ``6(j)(1)(A) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j))'' and inserting
``310(a)(1)(A) of the Export Administration Act of 2001''.
(C) Section 2327(b)(2) of title 10, United States Code, is
amended by striking ``6(j)(1)(A) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j)(1)(A))'' and inserting
``310(a)(1)(A) of the Export Administration Act of 2001''.
(D) Section 2410i(a) of title 10, United States Code, is
amended by striking ``3(5)(A) of the Export Administration Act
of 1979 (50 U.S.C. App. 2402(5)(A))'' and inserting ``502(a) of
the Export Administration Act of 2001''.
(25) Section 233 of the Trade Expansion Act of 1962 (19
U.S.C. 1864) is amended--
(A) by striking ``(50 U.S.C. App. 2404),'' and
inserting ``(as in effect prior to its repeal by the
Export Administration Act of 2001), any export control
imposed under title II of the Export Administration Act
of 2001,''; and
(B) by striking ``that section'' and inserting
``either such section''.
(26) Section 502(b)(2)(F) of the Trade Act of 1974 (19
U.S.C. 2462(b)(2)(F)) is amended by striking ``6(j)(1)(A) of
the Export Administration Act of 1979'' and inserting
``310(a)(1) of the Export Administration Act of 2001''.
(27) Section 133 of the Uruguay Round Agreements Act (19
U.S.C. 3553) is amended by striking ``section 8(a) of the
Export Administration Act of 1979 (50 U.S.C. App. 2407(a)) (as
in effect on August 20, 1994)'' and inserting ``section 502 of
the Export Administration Act of 2001''.
(28) Section 901(j)(2)(A)(iv) of the Internal Revenue Code
of 1986 (26 U.S.C. 901(j)(2)(A)(iv)) is amended by striking
``6(j) of the Export Administration Act of 1979, as amended''
and inserting ``310 of the Export Administration Act of 2001''.
(29) Section 927(a)(2) of the Internal Revenue Code of 1986
(26 U.S.C. 927(a)(2)) is amended--
(A) in subparagraph (C), by adding ``or'' after the
comma;
(B) by striking subparagraph (D);
(C) by redesignating subparagraph (E) as
subparagraph (D); and
(D) by striking ``subparagraph (E)'' and inserting
``subparagraph (D)''.
(30) Section 943(a)(3) of the Internal Revenue Code of 1986
(26 U.S.C. 943(a)(3)) is amended--
(A) in suparagraph (C), by adding ``or'' after the
comma;
(B) by striking subparagraph (D);
(C) by redesignating subparagraph (E) as
subparagraph (D); and
(D) by striking ``subparagraph (E)'' and inserting
``subparagraph (D)''.
(31) Section 993(c)(2) of the Internal Revenue Code of 1986
(26 U.S.C. 993(c)(2)) is amended--
(A) in subparagraph (C), by adding ``or'' after the
comma;
(B) by striking subparagraph (D);
(C) by redesignating subparagraph (E) as
subparagraph (D); and
(D) by striking ``subparagraph (E)'' and inserting
``subparagraph (D)''.
(32) Section 254(e)(3) of the Energy Policy and
Conservation Act (42 U.S.C. 6274(e)(3)) is amended by striking
``12 of the Export Administration Act of 1979'' and inserting
``602 of the Export Administration Act of 2001''.
(33) Section 721(f)(4)(A) of the Defense Production Act of
1950 (50 U.S.C. App. 2170(f)(4)(A)) is amended--
(A) in clause (i), by striking ``6(j) of the Export
Administration Act of 1979'' and inserting ``310 of the
Export Administration Act of 2001'';
(B) in clause (ii), by striking ``section 6(l) of
the Export Administration Act of 1979'' and inserting
``the Export Administration Act of 2001''; and
(C) in clause (iii), by striking ``section 6(m) of
the Export Administration Act of 1979'' and inserting
``the Export Administration Act of 2001''.
(34) Section 275 of the National Defense Authorization Act
for Fiscal Years 1988 and 1989 (15 U.S.C. 4605) is amended by
striking ``1979 (50 U.S.C. App. 2401 et seq.)'' and inserting
``2001''.
(35) Section 1605(a)(7)(A) of title 28, United States Code,
is amended by striking ``section 6(j) of the Export
Administration Act of 1979 (50 U.S.C. App. 2405(j))'' and
inserting ``section 310 of the Export Administration Act of
2001''.
(36) Section 1621(a) of the International Financial
Institutions Act (22 U.S.C. 262p-4q(a)) is amended by striking
``section 6(j) of the Export Administration Act of 1979 (50
U.S.C. App. 2405(j))'' and inserting ``section 310 of the
Export Administration Act of 2001''.
(37) Subsection (f) of section 491 and section 499 of the
Forest Resources Conservation and Shortage Relief Act of 1990
(16 U.S.C. 620c(f) and 620j) are repealed.
(38) Section 904(2)(B) of the Trade Sanctions Reform and
Export Enhancement Act of 2000 (22 U.S.C. 7203) is amended by
striking ``Export Administration Act of 1979'' and inserting
``Export Administration Act of 2001''.
(39) Section 983(i)(2) of title 18, United States Code (as
added by Public Law 106-185), is amended--
(A) by striking the ``or'' at the end of
subparagraph (D);
(B) by striking the period at the end of
subparagraph (E) and inserting ``; or''; and
(C) by inserting after subparagraph (E) the
following new subparagraph:
``(F) the Export Administration Act of 2001.''.
(j) Civil Aircraft Equipment.--Notwithstanding any other provision
of law, any product that--
(1) is standard equipment, certified by the Federal
Aviation Administration, in civil aircraft, and
(2) is an integral part of such aircraft, shall be subject
to export control only under this Act. Such product shall not
be subject to controls under section 38(b)(2) of the Arms
Export Control Act (22 U.S.C. 2778(b)).
(k) Repeal of Certain Export Controls.--Subtitle B of title XII of
division A of the National Defense Authorization Act for Fiscal Year
1998 (50 U.S.C. App. 2404 note) is repealed.
SEC. 808. 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, the Export Administration Act of
1979, or the International Emergency Economic Powers Act when
invoked to maintain and continue the Export Administration
regulations, or
(2) those provisions of the Arms Export Control Act which
are amended by section 702,
and are in effect on the date of enactment of this Act, shall continue
in effect according to their terms until modified, superseded, set
aside, or revoked under this Act or the Arms Export Control Act.
(b) Administrative and Judicial Proceedings.--
(1) Export administration act.--This Act shall not affect
any administrative or judicial proceedings commenced or any
application for a license made, under the Export Administration
Act of 1979 or pursuant to Executive Order 12924, which is
pending at the time this Act 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 Act shall not affect any
administrative or judicial proceeding commenced or any
application for a license made, under those provisions of the
Arms Export Control Act which are amended by section 702, if
such proceeding or application is pending at the time this Act
takes effect. Any such proceeding, and any action on such
application, shall continue under those provisions as if those
provisions had not been amended by section 702.
(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, or Executive Order 12924, that
is in effect on the day before the date of enactment of this Act,
shall, for purposes of this title or any other provision of law, be
deemed to be made under section 310 of this Act until superseded by a
determination under such section 310.
(d) Lawful Intelligence Activities.--The prohibitions otherwise
applicable under this Act do not apply with respect to any transaction
subject to the reporting requirements of title V of the National
Security Act of 1947. Notwithstanding any other provision of this Act,
nothing shall affect the responsibilities and authorities of the
Director of Central Intelligence under section 103 of the National
Security Act of 1947.
(e) Implementation.--The Secretary shall make any revisions to the
Export Administration regulations required by this Act no later than
180 days after the date of enactment of this Act.
Background and Purpose
The bill, H.R. 2581, the ``Export Administration Act of
2001'' provides a modern, comprehensive framework for the
control of United States exports of goods and services with
both civilian and military applications. It replaces the
expired Export Administration Act of 1979, designed decades ago
to limit the military capabilities of the now defunct Soviet
Union and its Warsaw Pact allies in cooperation with the
Coordinating Committee on Multilateral Export Controls (CoCom).
In 1994, CoCom, a system under which the United States or any
other country could exercise a unilateral veto over dual-use
exports, expired. A replacement regime, the Wassenaar
Arrangement, was formed 2 years later, but it permits only
post-export notifications of sales of controlled items by its
member countries.
Since the U.S. is no longer the sole supplier of many, if
not most, dual-use technologies, the need for a common approach
among supplier countries is, in the Committee's view, all the
more essential for their effective monitoring and control. The
Committee strongly endorses Administration efforts to
strengthen existing multilateral regimes and to promote more
timely information-sharing, including the creation of new
mechanisms in the Waasenaar Arrangement providing for a ``no
undercut'' policy, a common standard for enforcement, and
greater attention to end users connected with terrorist
activities and those countries which are determined to be
harboring or otherwise assisting terrorists.
The reform legislation, H.R. 2581, incorporates a number of
these multilateral export control objectives. It seeks to
balance competing U.S. national security and economic interests
by ensuring that appropriate controls are placed on the export
of dual-use goods, services, and technologies to limit the
military potential of countries threatening the U.S. or its
allies, deter international terrorism and impede the
proliferation of weapons of mass destruction. The legislation
seeks to ensure global U.S. economic leadership and to
establish principles for the use of effective U.S. economic
sanctions. As is the case with current law, H.R. 2581 is also
designed to promote U.S. foreign policy interests in promoting
peace stability and respect for human rights.
The bill consists of seven titles as follows: general
authority; national security export controls; foreign policy
export controls; procedures for export licenses and interagency
dispute resolution; international arrangements; foreign
boycotts; sanctions and enforcement; export control authority
and regulations; and miscellaneous provisions.
Since the Export Administration Act expired on August 20,
1994, the President has continued export controls pursuant to
his authority under the International Emergency Economic Powers
Act (IEPPA). However, in light of the fact that IEPPA is not a
satisfactory framework for indefinitely maintaining export
controls in place of the Export Administration Act, the
Congress passed a 1-year extension of this Act through August
20, 2001.
As introduced, H.R. 2581 is virtually identical to S. 149,
a measure which passed the Senate on September 6 by a vote of
85 to 14. Unlike the Senate version, however, this bill does
include two sections amending the North Korean Threat Reduction
Act of 1999 which passed the House by a vote of 374 to 6 in the
106th Congress. These provisions are intended to ensure that
Congress will be fully involved in the decision our nation may
have to make in several years whether to transfer to North
Korea of key components for the two light water reactors that
are being built in North Korea pursuant to the 1994 Agreed
Framework with that country.
Mindful of the need to discharge its responsibilities and
move ahead with the consideration of a bill reforming the
export control system, the Committee agreed to use H.R. 2581 as
base text, not as any blanket endorsement of all of its
provisions, but as the most expedient vehicle to which a number
of comprehensive amendments could be offered.
Nonetheless, the Committee recognizes that the current
political and economic environment facing the U.S. demands new
approaches to export controls. The increasingly integrated
global economy presents competitive challenges to many U.S.
comapnies, including even high-technology firms. Many items of
comparable quality and price are often manufactured by rival
firms in foreign countries that do not control their exports as
strictly as does the United States.
In the course of Committee hearings on export control
issues, the argument was frequently advanced that if an item or
technology cannot be controlled multilaterally it is self-
defeating for the U.S. to impose unilateral controls that will
not prevent countries of concern from obtaining these items.
When the item or product is of comparable quality and the
Executive Branch has been unable to convince the foreign
country to control the item, then full consideration should be
given to removing the item from the control list through a
``foreign availability'' exemption. Industry advocates argue
that, in administering any export control regime, the Secretary
of Commerce should apply foreign availability determinations
broadly to exempt items from licensing and should also seek to
exempt those items available in ``mass market'' quantities and
distribution channels.
While H.R. 2581 fully reflects these concerns, the
Committee believes that the President ought to have as much
flexibility as possible to maintain export controls on an item
even if it is determined to be available from a foreign
supplier. The Committee believes, moreover, that faster and
more efficient processing of export license applications and
the maintenance of strict time limits for their review are more
productive ways to level the playing field for American high-
technology exporters than the decontrol of broad categories of
of dual use items or products.
In general, the amendments offered at the Committee were
intended to increase the President's flexibility to impose
export controls, designate certain types of goods and services
as requiring heightened scrutiny, and increasing the
involvement of the Secretary of State, the Secretary of Defense
and the intelligence agencies in making certain decisions
required by the Act. In addition, certain controls related to
U.S. foreign policy and potentially dangerous goods and
practices were also offered and adopted.
Review of the detail of some these amendments is
instructive. One of the amendments adopted by the Committee
provides the President with additional flexibility to place
items of concern on the national security control list and to
control their export notwithstanding other decontrol mandates
in the bill. In the view of the Committee, this amendment is
important to our heightened efforts to combat terrorist and
proliferation-related threats facing the U.S., such as bio-
terrorism.
Another amendment adopted by the Committee strengthens
multilateral cooperation to stem the proliferation of weapons
of mass destruction. It provides the statutory basis for the
administration to keep in place the Enhanced Proliferation
Control Initiative, EPCI, against the export of any item for a
program or activity of an end use or end user that is directly
involved in the development of weapons of mass destruction or
the means to deliver them.
The amendment also ensures the harmonization of standards
and policies for other similar nonproliferation regimes put in
place by our trading partners; increases the transparency of
the EPCI process; and under certain circumstances provides for
the presumption of denial for items to end users seeking to
produce weapons of mass destruction or the means to deliver
them. A separate amendment adopted by the Committee established
a presumption of denial regarding the export of items that
would either undermine regional stability or otherwise prove
detrimental to the national security of the United States, a
NATO ally or major non-NATO ally.
Another en bloc amendment adopted by the Committee places
additional safeguards on the export of specific torture
products as well as the export of experimental medicine and
other test articles for human experimentation. Section 6(n) of
the Export Administration Act of 1979 and existing export
regulations require licenses for the export of crime control
equipment generally, with the exception for equipment that is
sold to NATO members, Japan, Australia, New Zealand or other
countries designated by the President. The new section of the
bill created by this amendment would continue this requirement
and general exception from licensing. However, it would also
ensure that crime control equipment that is ``especially
susceptible to abuse'' would not go to countries that
repeatedly engage in torture, unless the Secretary, with the
concurrence of the Secretary of State, determines that the end
user of the equipment proposed for export has not been found to
be engaged in torture.
The same en bloc amendment also included several other
provisions addressing the problem of under-regulated clinical
trials of experimental drugs and other test articles on human
participants in foreign countries. Specifically, the amendment
would prohibit the unlicenced export of test articles which are
intended for clinical investigations and establishes criteria
under which the President may grant licenses for these exports.
In December 2000, The Washington Post published a six-part
series of investigative articles which described the abuses of
United States-based pharmaceutical companies in the testing of
experimental drugs. Four months later, the National Bioethics
Advisory Commission (``NBAC'') presented to the President a
report, entitled ``Ethical and Policy Issues in International
Research: Clinical Trials in Developing Countries,'' which
discussed the ethical issues generated by research on human
participants in developing countries and recommended ways to
ensure their health and safety.
Thus, the section helps guarantee that researchers of test
articles who conduct trials on human participants outside the
United States abide by the same standards of voluntary informed
consent and ethically sound research protocols which apply for
similar investigations inside the United States.
Another amendment, adding a new section (Section 313),
addresses the difficult issue of the uncontrolled international
export of large quantities of pesticides and related chemicals.
As a unique class of man-made compounds designed to be harmful
to life, pesticides pose a potentially serious risk to human
health and environmental safety. Moreover, the United States
has yet to adopt stringent controls over pesticide exports.
The Committee, therefore, adopted an amendment providing
the President with the authority he needs to prohibit the
export of certain pesticides and chemicals should he deem them
a threat to human health, public safety or the environment. The
amendment also requires a number of studies from the President
and the GAO concerning current exports of chemicals and
pesticides, the existing regulatory system for monitoring,
managing and controlling the export of these substances and
recommendations for how to improve the United States regulatory
framework.
H.R. 2581, as amended, would also give the President more
flexibility in identifying items to be included on the National
Security Control List and in setting aside Department of
Commerce decisions to decontrol an item. It is the view of the
Committee that the Congress should not, on the one hand,
delegate its constitutional authority to regulate commerce and
control exports and, on the other, proscribe the President from
identifying and controlling items of concern on a key control
list in the face of unforseen threats, including acts of
terrorism, from outside or inside the U.S.
As amended, H.R. 2581 also restores jurisdiction to the
Commerce Department over the licensing of commercial
communications satellites with certain conditions; ensures that
the Departments of State and Defense play a role in the
consideration of classification requests for items on the
control list; and further strengthens the post shipment
verification provisions in the bill ensuring better monitoring
of the actual use of items licenses by the Bureau of Export
Administration.
RESPONDING TO TERRORIST THREATS
Controls of dual use exports, including transfers to
foreign nationals within the United States, have taken on a
much greater importance since the events of September 11, 2001.
Foreign terrorist organizations have targeted U.S. civilians
and bioterrorists have attacked the Majority Leader of the
Senate, a number of influential media outlets, and the
facilities of the U.S. Postal Service.
Press reports suggest that certain chemical additives and
sophisticated, yet perhaps widely available, machinery was used
to produce the particularly dangerous anthrax delivered to the
offices of Senator Daschle. Even if the Al-Qaeda terrorist
network is not directly implicated in the effort to send
anthrax-laden letters through the U.S. postal service, the
Committee believes that greater scrutiny must be directed to
controlling items of interest to terrorists, terrorist
organizations, and the countries that sponsor them.
As detailed below, the Committee's amendment makes a number
of improvements to H.R. 2581, as introduced, to address these
concerns. For example, H.R. 2581, as inroduced, does not
provide any specific authority to control exports to terrorists
or terrorist organizations that are not related to weapons of
mass destruction or the means to deliver them if such
terrorists or terrorist organizations are not located in
countries that are designated as state sponsors of terrorism.
As we have learned, foreign terrorist organizations have front
organizations or cells in a large number of countries, not just
countries whose governments have been designated as state
sponsors of terrorism.
The Committee's amendment addresses these problems in
several ways. First, it establishes a presumption of denial on
any item if the Secretaries of Commerce, State and Defense
agree that there is a significant risk that the export of such
item would prove detrimental to the national security of the
United States, a NATO ally, or major non-NATO ally.
Presumptions of denial are also established, for example, (1)
if there is a significant risk that the end user is involved in
a program or activity for the design, development, manufacture,
stockpiling, testing or other acquisition of WMD and the means
to deliver them and is not in an adherent to a multilateral
export control regime controlling such weapon, unless the item
would not make a material contribution to such program; or (2)
if such item would likely be used or diverted to a use or
destination not authorized by the license or United States
policy. The President is also provided authority to place items
on the National Security Control List, irrespective of what
disagreements may exist over such items among the relevant
agencies.
Hearings
The Committee would note that H.R. 2581 was ordered
reported prior to the events of September 11, 2001, and that
additional modifications might well be necessary to this bill
to ensure that U.S. export laws are adequate to combat the
threat to our national security posed by terrorists. The
Committee will seek to ensure those modifications are made as
the bill moves forward in the legislation process.
On May 23, June 12, and July 11, 2001, the Committee held
hearings on ``The Export Administration Act: The Case for Its
Renewal.'' On May 23, the Committee heard testimony from the
Undersecretary of Commerce for Export Administration, Kenneth
I. Juster. On June 12, the Committee took testimony from
Senators Phil Gramm (R-Texas) and Fred Thompson (R-Tennessee);
Representative Chris Cox (R-California); Richard T. Cupitt, the
Associate Director for the Center for International Trade and
Security at the University of Georgia; Paul Freedenberg, the
Director of Government Relations for the Association of
Manufacturing Technology; and Dan Hoydish, the Washington
Director for UNISYS representing the Computer Coalition for
Responsible Exports. On July 11, the Committee heard from
Senator Mike Enzi (R-Wyoming); the Honorable John R. Bolton,
the Under Secretary for Arms Control and International Security
at the U.S. Department of State; Mr. David Tarbell, the Deputy
Under Secretary for Technology Security Policy at the
Department of Defense; Mr. Stephen Bryen, the Managing Partner
for Aurora Marketing and Business Development; and Larry
Christensen, the Vice President of Vastera, Inc.
Committee Consideration
H.R. 2581 was introduced by Representative Gilman on July
20, 2001, and was referred, having primary jurisdiction, to the
House Committee on International Relations. It was also
referred to the Committee on Rules.
On August 1, 2001, the Committee met in open session and
ordered favorably reported the bill H.R. 2581, with an
amendment, by a record vote of 26 ayes to 7 noes, a quorum
being present.
The Committee adopted six amendments. The first was offered
by Chairman Hyde. This amendment provides additional
flexibility and discretion to the President by enhancing his
authority with regard to controlling items on and the
composition of the National Security Control List. This
amendment was agreed to by a record vote of 29 ayes to 5 noes.
The second amendment, an en bloc amendment offered by Mr.
Lantos, expands purposes of foreign policy controls to govern
the export of test articles intended for clinical investigation
involving human subjects and requires a license for such
exports, which must include proof that the clinical
investigation abroad must meet the same standards as an
investigation that took place in the United States. The en bloc
amendment also amends section 311 (on export control policy
regarding crime control and detection instruments and
equipment) to restrict export of such devices to countries that
engage in torture. This amendment was agreed to by a record
vote of 25 ayes to 8 noes.
Chairman Hyde offered the third amendment, an amendment
which codifies the Enhanced Proliferation Control Initiative
(EPCI) standard and requires presumption of denial for exports
that meet EPCI-type standard as well as those exports that
would undermine regional stability or are detrimental to the
U.S. and its allies. This amendment was agreed to by a record
vote of 30 ayes to 7 noes.
The fourth amendment adopted was offered by Mr. Berman.
This amendment added a title to the bill, ``Exports of
Satellites.'' This amendment was agreed to by voice vote. The
next amendment adopted was offered by Chairman Hyde and was
agreed to by voice vote. This amendment enhances the role of
the Secretary of Defense in the commodity classification
process, and provides additional flexibility to the Executive
branch in prescribing the interagency dispute resolution
process for license applications. The final amendment adopted
was an amendment en bloc offered by Chairman Hyde. This
amendment was agreed to by voice vote.
The motion to favorably report H.R. 2581 to the House, as
amended, was agreed to by a record vote of 26 ayes to 7 noes.
Votes of the Committee
Clause (3)(b) of rule XIII of the Rules of the House of
Representatives requires that the results of each record vote
on an amendment or motion to report, together with the names of
those voting for or against, be printed in the committee
report.
Vote #1: Chairman Hyde amendment providing additional
flexibility and discretion to the President by enhancing his
authority with regard to controlling items on and the
composition of the National Security Control List. The
amendment was agreed to by a record vote of 29 ayes to 5 noes.
Voting yes: Hyde, Gilman, Leach, Bereuter, Smith (NJ),
Burton, Ballenger, Rohrabacher, Royce, Chabot, Houghton,
McHugh, Smith (MI), Pitts, Issa, Cantor, Kerns, Davis (VA),
Lantos, Berman, Hilliard, Sherman, Meeks, Lee, Crowley,
Berkley, Napolitano, Schiff, and Watson.
Voting no: Paul, Flake, Payne, Menendez, Blumenauer.
Vote #2: The Lantos en bloc amendment expanding purposes of
foreign policy controls to govern the export of test articles
intended for clinical investigation involving human subjects
and requires a license for such exports, which must include
proof that the clinical investigation abroad must meet the
standards as an investigation that took place in the United
States. It also amends section 311 (on export control policy
regarding crime control and detection instruments and
equipment) to restrict export of such devices to countries that
engage in torture. This amendment was agreed to by a record
vote of 25 ayes to 8 noes.
Voting yes: Hyde, Gilman, Leach, Bereuter, Smith (NJ),
Burton, Ballenger, Rohrabacher, Royce, Chabot, Tancredo, Pitts,
Davis (VA), Lantos, Ackerman, Payne, Hilliard, Engel, Meeks,
Lee, Hoeffel, Berkley, Napolitano, Schiff, and Watson.
Voting no: Houghton, Cooksey, Paul, Smith (MI), Issa,
Cantor, Flake, and Kerns.
Vote #3: Chairman Hyde amendment which codifies the
Enhanced Proliferation Control Initiative (EPCI) standard and
requires presumption of denial for exports that meet EPCI-type
standard as well as those exports that would undermine regional
stability or are detrimental to the U.S. and its allies. This
amendment was agreed to by a record vote of 30 ayes to 7 noes.
Voting yes: Hyde, Gilman, Leach, Bereuter, Smith (NJ),
Burton, Gallegly, Ballenger, Rohrabacher, Royce, Chabot, Burr,
Tancredo, Pitts, Kerns, Davis (VA), Lantos, Berman, Ackerman,
Brown, Hilliard, Engel, Meeks, Lee, Crowley, Hoeffel, Berkley,
Napolitano, Schiff, and Watson.
Voting no: Houghton, Paul, Smith (MI), Flake, Payne,
Menendez, and Blumenauer.
Vote #4: Motion to favorably report to the House H.R. 2581,
as amended. Agreed to by a vote of 26 ayes to 7 noes.
Voting yes: Hyde, Gilman, Leach, Bereuter, Smith (NJ),
Gallegly, Ros-Lehtinen, Rohrabacher, Royce, Chabot, McHugh,
Cantor, Kerns, Davis (VA), Lantos, Ackerman, Brown, Hilliard,
Sherman, Davis (FL), Lee, Crowley, Hoeffel, Berkley,
Napolitano, and Watson.
Voting no: Houghton, Burr, Cooksey, Paul, Issa, Flake, and
Menendez.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimates
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 21, 2001.
Hon. Henry J. Hyde, Chairman,
Committee on International Relations,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2581, the Export
Administration Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Ken Johnson
(for federal costs), who can be reached at 226-2860, and
Theresa Gullo (for the state and local impact), who can be
reached at 225-3220.
Sincerely,
Dan L. Crippen, Director.
Enclosure:
cc:
Honorable Tom Lantos
Ranking Democratic Member
H.R. 2581--Export Administration Act of 2001.
Summary
H.R. 2581 would replace the expired Export Administration
Act of 1979 (EAA) and would update the system for applying
export controls and penalties on American business for national
security or foreign policy purposes. Since the expiration of
the EAA in August, the President has extended export controls
pursuant to his authority under the International Emergency
Economic Powers Act. The Bureau of Export Administration (BXA)
in the Department of Commerce administers export controls. This
bill would authorize such activities through 2005.
CBO estimates that implementing H.R. 2581 would cost about
$370 million over the 2002-2006 period, assuming appropriation
of the necessary funds. Because the bill would increase
criminal and civil penalties for violations of export controls,
CBO estimates governmental receipts would increase by $11
million over the 2002-2006 period. CBO estimates that the
increase in criminal penalties would cause direct spending from
the Crime Victims Fund to rise by about $4 million during that
period. Because the bill would affect direct spending and
receipts, pay-as-you-go procedures would apply.
H.R. 2581 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on state, local, or tribal governments. CBO's estimate of
the bill's impact on the private sector will be provided later
in a separate statement.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of the bill is shown in the
following table. The costs of this legislation fall within
budget function 370 (commerce and housing credit), 050
(national defense), and 150 (international affairs).
By fiscal year, in millions of dollars
----------------------------------------------------------------------------------------------------------------
2002 2003 2004 2005 2006
----------------------------------------------------------------------------------------------------------------
CHANGES IN REVENUES AND DIRECT SPENDING
Estimated Revenues 0 1 2 4 4
Estimated Budget Authority 0 0 1 1 2
Estimated Outlays 0 0 1 1 2
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
EAA Spending by the
Bureau of Export Administration
Estimated Authorization Level 94 87 90 95 0
Estimated Outlays 80 83 90 94 14
EAA Spending by the
Departments of State and Defense
Estimated Authorization Level 2 2 2 2 0
Estimated Outlays 2 2 2 2 0
Total Proposed Changes
Estimated Authorization Level 96 89 92 97 0
Estimated Outlays 82 85 92 96 14
----------------------------------------------------------------------------------------------------------------
BASIS OF ESTIMATE
H.R. 2581 would authorize the BXA to control the export of
certain items from the United States for national security or
foreign policy purposes. Generally, export controls would not
apply to products that are mass-market items or available from
foreign sources at a comparable price and quality. When fully
phased in, CBO estimates that provisions of the Export
Administration Act of 2001 would increase revenues by about $4
million a year beginning in fiscal year 2005 and direct
spending by about $2 million a year beginning in 2006. In
addition, we estimate that implementing the bill would cost
$369 million over the 2002-2006 period, assuming appropriation
of the necessary amounts.
Revenues
Since the expiration of the Export Administration Act of
1979 in August, criminal and civil penalties for violating
export control laws have been collected under the International
Economic Emergency Powers Act. H.R. 2581 would significantly
raise the maximum criminal fines that could be imposed for
violations of export controls. The bill would set the maximum
criminal fines at 10 times the value of the exports involved,
or $5 million for corporations and $1 million for individuals,
whichever is greater. Under the bill, civil penalties of up to
$500,000 could also be imposed for violations of the law. On
average, about three years elapse between the initial
investigation of violations of export control law and the
collection of a penalty. Because the amount of a fine is based
on the law in force at the start of an investigation, CBO does
not expect penalties under the new law to be collected until
fiscal year 2003. Based on information from the Department of
Commerce, CBO estimates that enacting the bill would increase
receipts from civil penalties by $2 million a year and receipts
from criminal penalties by another $2 million a year beginning
in 2005.
Direct Spending
Collections of criminal fines are recorded in the budget as
governmental receipts (i.e., revenues), which are deposited in
the Crime Victims Fund and spent in subsequent years. When
fully phased in, the additional direct spending resulting from
the increase in criminal penalties would be about $2 million a
year beginning in 2006, because spending from the Crime Victims
Fund lags behind the collection of criminal fines by about a
year.
Spending Subject to Appropriation
BXA is responsible for implementing the EAA. Based on
information from the Department of Commerce, CBO estimates
that, with current funding, the BXA will spend about $52
million in 2001 on this effort. H.R. 2581 would authorize the
appropriation of between $72 million and $76 million a year for
the Department of Commerce to implement the provisions of the
bill during the 2002-2005 period. Also, the bill would
authorize additional appropriations of at least $3.5 million
annually to hire 20 employees to establish a best practices
program for exporters, at least $4.5 million annually to hire
10 overseas investigators, $5 million to enhance the BXA's
program to verify the end use of controlled exports, at least
$5 million to procure a computer system for export licensing
and enforcement, and $4 million annually to hire and train
additional license review officers.
Based on information from the BXA, CBO estimates that
implementing a best practices program for exporters would cost
about $4 million a year, stationing overseas investigators
would cost about $5 million a year, hiring and training license
review officers would cost $4 million a year, and procuring the
computer system would cost about $4 million in 2002 and $1
million in 2003. Any such spending would be subject to
appropriation of the necessary amounts. Based on BXA's
historical spending patterns, CBO estimates that implementing
the bill would cost the agency about $361 million over the
2002-2006 period. This estimate assumes that funds are
appropriated for the BXA through 2005, as provided in section
506 of the bill.
H.R. 2581 also would require the Departments of State and
Defense to review the classification of exports under the new
rules established by the bill, and make recommendations to the
Department of Commerce. Based on information from the
Departments of State and Defense, CBO assumes that those two
agencies would need to hire additional staff to conduct these
reviews. CBO estimates that implementing these provisions would
cost about $2 million a year during the 2002-2005 period.
PAY-AS-YOU-GO CONSIDERATIONS
The Balanced Budget and Emergency Deficit Control Act
establishes pay-as-you-go procedures for legislation affecting
direct spending or receipts. The net changes in outlays and
governmental receipts that are subject to pay-as-you-go
procedures are shown in the following table. For the purposes
of enforcing pay-as-you-go procedures, only the effects in the
current year, the budget year, and the succeeding four years
are counted.
By fiscal year, in millions of dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in outlays 0 0 0 1 1 2 2 2 2 2 2
Changes in receipts 0 0 1 2 4 4 4 4 4 4 4
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
H.R. 2581 contains no intergovernmental mandates as defined
in UMRA and would impose no costs on state, local, or tribal
governments.
ESTIMATED IMPACT ON THE PRIVATE SECTOR
CBO's estimate of the bill's impact on the private sector
will be provided later in a separate statement.
PREVIOUS CBO ESTIMATE
On April 2, 2001, CBO transmitted an estimate of S. 149,
the Export Administration Act of 2001, as ordered reported by
the Senate Committee on Banking, Housing, and Urban Affairs on
March 22, 2001. Based on information from the Bureau of Export
Administration, CBO estimated that enacting S. 149 would
increase penalty collections by $8 million a year when fully
phased in. Since that time, CBO has obtained new information
from BXA, and now estimates that enacting either bill would
increase penalty collections by $4 million a year when fully
phased in.
CBO also estimated that implementing S. 149 would cost BXA
about $377 million over the 2001-2006 period, assuming the
appropriation of the necessary amounts. For that estimate, CBO
assumed that Congress would enact the bill by July 1, 2001, and
that some of the ongoing costs of the bill would begin in 2001.
For CBO's estimate of H.R. 2581, we assume that the bill would
have no budgetary effect until 2002. This decrease in the
estimated costs, however, is partially offset by CBO's estimate
of the added costs for the Departments of State and Defense to
implement the bill.
ESTIMATE PREPARED BY:
Federal Costs: Ken Johnson (226-2860)
Federal Receipts: Erin Whitaker (226-2720)
Impact on State, Local, and Tribal Governments: Theresa Gullo
(225-3220)
ESTIMATE APPROVED BY:
Peter H. Fontaine
Deputy Assistant Director for Budget Analysis
G. Thomas Woodward
Assistant Director for Tax Analysis
November 9, 2001
H.R. 2581--Export Administration Act of 2001.
Summary
H.R. 2581 would impose private-sector mandates as defined
by the Unfunded Mandates Reform Act (UMRA) on certain
exporters. CBO estimates that the total direct cost of those
mandates would fall below the annual threshold established by
UMRA for private-sector mandates ($113 million in 2001,
adjusted annually for inflation).
PRIVATE-SECTOR MANDATES CONTAINED IN THE BILL
H.R. 2581 would replace the expired Export Administration
Act of 1979 (EAA) and would update the system for applying
export controls and penalties on American business for national
security or foreign policy purposes.
The bill would require pharmaceutical companies that apply
for licenses to export certain test articles, including drugs,
medical devices, biological products, and additives, to
undertake new procedures. Such firms would have to identify
each clinical investigation concerning those articles involving
human subjects and submit proof that the protocols for each
investigation have been examined by an institutional review
board. Based on information from the Pharmaceutical Research
and Manufacturers of America and the Federal Drug
Administration, the cost to identify and submit proof of review
would be small and further, few test articles would be subject
to the new procedures.
The bill would prohibit implements of torture from being
exported to certain countries. According to the Bureau of
Export Administration, the number of prohibited instruments and
equipment would be minimal.
H.R. 2581 also would require exporters not currently filing
their applications through the Automated Export System (AES) to
do so. Based on information from the Bureau of Export
Administration, the number of additional exporters that would
now be required to file through the AES would be minimal.
PREVIOUS CBO ESTIMATE
On April 2, 2001, CBO transmitted an estimate of S. 149,
the Export Administration Act of 2001, as ordered reported by
the Senate Committee on Banking, Housing, and Urban Affairs on
March 22, 2001. CBO determined that S. 149 contained no
private-sector mandates as defined by UMRA.
ESTIMATE PREPARED BY:
Paige Piper/Bach
ESTIMATE APPROVED BY:
Roger Hitchner
Assistant Director for Microeconomic and Financial Studies
Division
Performance Goals and Objectives
The performance goals and objectives of this bill are
consistent with the Government Performance and Results Act
performance plan submitted by the Department of Commerce.
Because the bill's objectives are consistent with the
performance plan submitted by the Department of Commerce new or
additional performace goals and objectives are not required.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 18 of the
Constitution.
Section-by-Section Analysis
Section 1. Short title; table of contents
Section 1 provides that the bill may be cited as the
``Export Administration Act of 2001,'' and provides a table of
contents.
Section 2. Definitions
Section 2 defines the terms used in the Act.
Section 101. Commerce control list
Section 101(a) directs the Secretary of Commerce to
establish and maintain a Commerce Control List consisting of
items that require a license or other authorization prior to
export and grants authority to require any type of license or
other authorization to implement export controls under this
Act. Section 101(b) specifies the types of licenses or other
authorization that can be required for single or multiple
exports, notification in lieu of a license, or an exception
from licensing. Section 101(c) provides that no license or
other authorization is required to provide after-market service
or replacement parts, to replace on a one-for-one basis parts
that were in an item lawfully exported from the United States,
unless the Secretary determines that a license is required or
the after-market service or replacement parts would materially
enhance the capability of the item. Section 101(d) provides
that a license or other authorization to export an item
includes authorization to export incidental technology related
to the item, so long as such technology does not go beyond that
which would be necessary to install, repair, maintain, inspect,
operate, or use the licensed item.
Section 102. Delegation of authority
Section 102 allows the President to delegate the authority
granted to him under this Act to such departments and officials
as he deems appropriate, except as provided in section 102(b)
and subject to other provisions of this Act. Section 102(b)(1)
limits this delegation to officials that are appointed by the
President with the advice and consent of the Senate. Section
102(b)(2) states that the President may not delegate or
transfer his authority to overrule or modify recommendations or
decisions made by the Secretaries of Commerce, Defense, or
State.
Section 103. Public information; consultation requirements
Section 103 requires the Secretary of Commerce to keep the
public fully informed of changes in export control policies and
procedures and to consult regularly with representatives from a
broad spectrum of enterprises, labor organizations, non-
proliferation and national security experts, and interested
citizens.
Section 104. Right of export
Section 104 affirms that no license or authorization may be
required except to carry out the provisions of this Act.
Section 105. Export control advisory committees
Section 105 authorizes the Secretary of Commerce to appoint
export advisory committees, made up of industry representatives
and government officials (including officials from the
Departments of Commerce, Defense, and State, and other
appropriate departments or agencies), to provide technical
advice and assistance to the Secretary and other appropriate
officials or departments regarding actions designed to carry
out the Act. Section 105 also provides the administrative
arrangements that such committees must follow.
Section 106. President's Technology Export Council
Section 106 authorizes the President to establish a
President's Technology Export Council to advise the President
on the implementation, operation, and effectiveness of the Act.
Section 107. Prohibition on charging fees
Section 107 provides that no fee may be charged to process
an export license application under the Act.
Section 201. Authority for national security export controls
Section 201 authorizes the President to control exports for
national security purposes to stem contributions to the
military capability of countries whose activities prove
detrimental to the national security of the United States, its
allies, or countries that share common strategic objectives
with the United States.
Section 201(c)(1)(A) authorizes export controls on items
that, based on the end-use or end-user and without regard to
any other requirement, exception or procedure mandated
elsewhere in the Act, could contribute to the proliferation of
weapons of mass destruction or the means to deliver them.
Section 201(c)(1)(B) directs the President to seek to
strengthen multilateral cooperation to identify more
effectively end users of concern. Section 201(c)(1)(C) directs
the Secretary to establish and maintain a database listing end
users of concern and to develop a procedure by which exporters
can utilize such database to screen prospective end users.
Section 201(c)(2) states that there shall be a presumption
of denial for the export of an item if the Secretary, with the
concurrence of the Secretary of Defense and the Secretary of
State, determines that there is a significant risk that (A) the
end user designated to receive such item is involved in a
program or activity for the design, development, manufacture,
stockpiling, testing, or other acquisition of a weapon of mass
destruction or the means to deliver such a weapon and is in a
country that is not an adherent to a multilateral export
control regime controlling such weapon or means of delivery,
unless the Secretary, with the concurrence of the Secretary of
Defense and the Secretary of State, and in consultation with
the intelligence agencies and the head of any other department
or agency of the United States that the Secretary considers
appropriate, determines that such export would not make a
material contribution to such program or activity or (B) the
export of such item would otherwise contribute to the military
capabilities of a country so as to undermine regional stability
or otherwise prove detrimental to the national security of the
United States, a NATO ally, or major non-NATO ally.
The Committee believes that the decision to export an item
to an end-user that is involved in WMD programs--especially
end-users in countries that do not adhere to the relevant
multilateral control regimes--should have to meet the highest
standards of protection of U.S. security interests, and this
subsection provides that there shall be a presumption of denial
unless the item in question would make no material contribution
to such a program. These are among the highest risk purchasers
of U.S. dual-use goods and technology, in countries which
choose not to cooperate with global efforts to halt the spread
of nuclear, chemical, or biological weapons, or the spread of
ballistic missile capabilities that could carry such weapons.
These purchasers and states have chosen to remain outside the
legitimate standards of international civilized behavior, and
indeed to place international peace and security at risk; as
such, neither of these purchasers or states should have any
right or expectation to benefit from the legitimate trade in
high-technology dual-use items.
While this provision does not constitute a statutory
prohibition on such exports, the Committee believes that it is
desirable to give the Executive Branch clear guidance. This is
intended as a ``fail-safe'' provision; if the Secretaries of
Commerce, Defense and State first agree that there is a
``significant risk'' that the proposed purchaser is involved in
WMD or missile programs, and the Secretaries fail to agree that
said export would not make a material contribution to a WMD
program or activity, then the Committee intends that export
should not be approved. Each Secretary is responsible for
different facets of the proliferation control problem, and each
must be satisfied that a specific export in these circumstances
would not undermine U.S. security interests.
Section 201(d)(1) authorizes the President to impose
enhanced controls on National Security Control List items,
notwithstanding their status as incorporated parts or as mass-
market or foreign-available items, if removing controls could
constitute a threat to U.S. national security. Section
201(d)(2) gives the President the necessary authority to,
without regard to any other provision of the Act, to place
items on the National Security Control List as he deems
necessary. This does not replace the system for creating a
National Security Control List in section 202, but is a
separate authority for the President to add items to the list
directly without going through the process in section 202 and
other provisions in the Act. The Committee believes that there
could be occasions, especially since the events of September
11, that require making certain items immediately subject to
EAA national security controls, without regard to a potentially
time-consuming and possibly contentious interagency review
process. Section 201(d)(3) states that the President may not
delegate his authority under the previous two subsections.
Section 201(d)(4) requires the President to report any enhanced
control determination, along with the specific reason for the
determination, to the committees of jurisdiction.
Section 201(e)(1) states that when a license is required
for export to any country of any item on the National Security
Control List for any reasons specified in subsection (b), there
shall be a presumption of denial for the export of such item if
(1) there is a significant risk that such item would contribute
to the nuclear, chemical, or biological weapons capability of
such country or the capabilities of such country to deliver
such weapons; (2) such item would otherwise contribute to the
military capabilities of such country so as to undermine
regional stability or otherwise prove detrimental to the
national security of the United States, a NATO ally, or major
non-NATO ally; (3) such item would likely be used or diverted
to a use or destination not authorized by the license or United
States policy; or (4) the export of such item would otherwise
materially and adversely affect the national security interests
of the United States. Section 201(e)(2) states the paragraph
(1) shall not apply to the export of an item to a country that
is an adherent to a multilateral export control regime
controlling the export of such item.
The Committee believes that certain National Security
Control List items pose a higher risk of being used in WMD or
missile programs, or of undermining regional security. These
items should be subject to closer scrutiny during the export
licensing process, particularly if they are or can be easily
diverted to a use or destination not approved as part of the
original license application. If it is determined that there is
a significant risk that the export of such items could be used
or diverted for use for such purposes, or could undermine U.S.
national security interests, then there should be a presumption
of denial for export. As in 201(c)(2), this is not intended as
a statutory prohibition, but as clear guidance for the
Executive Branch in its consideration of licenses for these
types of exports. The Committee also believes that the
Secretaries of State and Defense, in consultation with the
intelligence agencies and any other department or agency the
Secretary of Commerce deems appropriate, must be consulted with
regard to decisions pertaining to the export of these items.
The Committee decided to except countries that are adherents to
multilateral control regimes that control such items, since
those countries are obligated or otherwise committed to
strictly control the use and security of such items.
Section 202. National security control list
Section 202 requires the Secretary of Commerce to establish
and maintain a National Security Control List, composed of
items controlled for national security purposes, as part of the
Commerce Control List. Section 202(a)(3) directs the Secretary,
with the concurrence of the Secretary of Defense, and the
Secretary of State, and in consultation with other appropriate
departments or agencies, to identify items for inclusion on the
List, provided that the List shall include all of the items on
the Commerce Control List on the day before the date of
enactment of this Act. Section 202(a)(3) further requires the
Secretary to review the List on a continuing basis, and, with
the concurrence of the Secretary of Defense, and the Secretary
of State, and in consultation with other appropriate
departments or agencies, make adjustments to the List. Section
202(b)(1) requires the Secretary to consider certain risk
factors, weighing national security concerns and economic
costs, in establishing and maintaining the List. Section
202(b)(2) specifies the risk factors for the Secretary's
consideration.
The Committee believes that the Secretaries and State and
Defense must have equal status with the Secretary of Commerce
in determining which items are to be controlled on the National
Security Control List. Both have unique responsibilities for
safeguarding the national security interests of the United
State; the Secretary of Defense for anticipating and defending
against military threats to the U.S. and it allies, the
Secretary of State as the leader in U.S. WMD nonproliferation
efforts and security-related international treaty
implementation and enforcement. The Department of State is also
the lead agency in controlling the export of lethal military
equipment generally.
Section 203. Country tiers
Section 203 directs the President to establish a country
tiering system of not less than 3 tiers, and assign each
country to an appropriate tier for each controlled item or
group of items. Section 203(b) requires that countries
representing the lowest risk of diversion or misuse of an item
be assigned to the lowest tier, while those representing the
highest risk of diversion or misuse be assigned to the highest
tier. Section 203(c) provides a number of risk factors to be
used by the President in making assessments of countries for
tier assignment purposes. The Committee believes that it is
critically important to take into consideration factors other
than a country's current capabilities regarding WMD; the
country's goals and intentions must be considered, as well. In
addition, while participation in multilateral export control
regimes is important, the extent to which the country actually
implements export controls, according to its own laws,
regulations and practices, should be a key consideration when
making country tier assignments.
Section 204. Incorporated parts and components
Section 204(a) provides that controls may not be imposed on
an item solely because the item incorporates parts or
components that are controlled if the part or component is
essential to the functioning of the item, is customarily
included in sales of the item, and is valued at 25 percent or
less of the total value of the item, unless the item itself
would make a significant contribution to the military or
proliferation potential of a country or end-user which would
prove detrimental to U.S. national security, or unless failure
to control the item would be contrary to controls imposed under
section 201(c) or section 309. Section 204(b) provides that no
authority may be required for the re-export of foreign-made
items incorporating U.S.-controlled parts if the value of the
U.S.-controlled parts is 25 percent or less of the total value
of the item, except that controls may be imposed on reexports
of items to countries designated as countries supporting
international terrorism if the controlled U.S. content is
greater than 10 percent of the total value of the item.
Section 205. Petition process for modifying export status
Section 205 directs the Secretary of Commerce to establish
a process for interested persons to petition the Secretary to
change the status of an item on the List.
Section 211. Determination of foreign availability and mass-market
status
Section 211(a) directs the Secretary of Commerce to review
and determine the foreign availability and mass-market status
of an item on a continuing basis, upon a request from the
Office of Technology Evaluation, or in response to a petition.
Section 211(b) requires the Secretary to establish a process
for interested parties to petition for a foreign availability
or mass-market determination for an item. Section 211(c)
provides that in any case in which the Secretary determines
that an item has foreign availability or mass-market status, no
license or other authorization shall be required for the export
of such item, unless the President makes a set-aside
determination under section 212 or 213. Section 211(d)
establishes criteria for determining foreign availability and
mass-market status, including by providing, consistent with
current law that in order to be a directly competitive item or
a substantially identical item for the purpose of making such a
determination, an item must be of comparable quality to the
controlled item.
Section 212. Presidential set-aside of foreign availability status
determination
Section 212(a)(1) provides the President with non-delegable
authority to set aside a foreign availability status
determination if failing to control the item constitutes a
threat to U.S. national security, if there is a high
probability that the foreign availability will be eliminated
through international negotiations, or if U.S. controls on the
item have been imposed under section 309. Section 212(a)(2)
requires the President to report any set-aside determination,
along with the specific reason for the determination, to the
committees of jurisdiction, and to publish the determination in
the Federal Register.
Section 212(b)(1) requires the President, if he has made a
set-aside determination under section 212(a), to actively
pursue negotiations with the governments of appropriate
countries for the purposes of eliminating the foreign
availability, and to notify the committees of jurisdiction of
these negotiations. Section 212(b)(2) directs the President to
review a set-aside determination under section 212(a) every six
months. Section 212(b)(3) provides that except for a set-aside
determination made under section 309, a set-aside determination
shall cease to apply within 6 months if negotiations are never
commenced, on the date that negotiations end without success,
on the date the President determines there is not a high
probability of eliminating foreign availability through
negotiation, or within 18 months if the President has been
unable to achieve agreement to eliminate foreign availability.
Section 213. Presidential set-aside of mass-market status determination
Section 213(a) provides the President with non-delegable
authority to set aside a mass-market status determination if
failing to control the item constitutes a serious threat to
U.S. national security and controlling the item would advance
U.S. national security interest, or if U.S. controls on the
item have been imposed under section 309. Section 213(b)(1)
requires the President to report any set-aside determination,
along with the specific reason for the determination, to the
committees of jurisdiction, and to publish the determination in
the Federal Register. Section 213(b)(2) directs the President
to review a set-aside determination under section 212(a) every
six months.
Section 214. Office of technology evaluation
Section 214(a)(1) establishes within the Department of
Commerce an Office of Technology Evaluation to gather,
coordinate, and analyze all information necessary for the
Secretary of Commerce to make foreign availability and mass-
market status determinations under the Act. Section 214(a)(2)
directs the Secretary to ensure that the Office includes
persons with the training, expertise and experience in economic
analysis, the defense industrial base, technological
developments, national security, and foreign policy export
controls to carry out the Office's responsibilities. Section
214(b) directs the Office to conduct a number of assessments,
evaluations, and monitoring functions. Section 214(c) requires
the Secretary to make available to the committees of
jurisdiction information on the Office's operations and
improvements in ability to assess foreign availability and
mass-market status. Section 214(d) directs departments and
agencies and their contractors to furnish to the Office
information about foreign availability and mass-market status
of items.
Section 301. Authority for foreign policy export controls
Section 301 authorizes the President to control exports for
the purposes of promoting foreign policy objectives; promoting
peace, stability and respect for human rights; deterring and
punishing acts of international terrorism; controlling the
export of test articles intended for clinical investigation
involving human subjects to foster public health and safety;
and controlling the export of goods and substances which are
banned, severely restricted, highly regulated or never
regulated for use in the United States to foster public health
and safety Section 301(c) prohibits controlling for foreign
policy reasons the export from a foreign country of an item
containing parts or components produced in the United States,
unless the export is to a country designated as a country
supporting international terrorism if the value of the
controlled U.S. parts or components is greater than 10 percent
of the total value of the item. Section 301(d) prohibits
controlling the export of an item for foreign policy purposes
if the export of such item is in performance of a binding
contract or is under an already issued license, unless the
export of such item would constitute a serious threat to a
foreign policy interest of the United States and controls on
that item will be instrumental in remedying the situation
posing the threat. The Committee modified section 301(d)(1)(a)
to make it clear that contracts for export of items upon which
the President subsequently decides to impose controls would not
be affected, provided they were concluded before the notice in
the Federal Register or the President's report to Congress
imposing the new controls, whichever occurs first. The
Committee was concerned that the bill's existing language could
have created a gap between an Administration's declaration to
impose controls and the formal report to Congress, and such a
gap would permit the hasty conclusion of a new contract that
would then have to be honored.
Section 302. Procedures for imposing controls
Section 302 outlines procedures for the imposition of
foreign policy export controls. Section 302(a) requires the
President, not later than 45 days before imposing a foreign
policy export control, to publish notice of intent to do so in
the Federal Register and provide for a 30-day period for public
comment. Section 302(b) authorizes the President to negotiate
with the government of the foreign country against which the
export control is imposed during the 45-day notice period.
Section 302(c) directs the President to consult with the
committees of jurisdiction regarding a proposed foreign policy
control and efforts to achieve multilateral cooperation on the
issues underlying the proposed control.
Section 303. Criteria for foreign policy export controls
Section 303 requires foreign policy export controls to have
clearly stated and specific foreign policy objectives, to have
objective standards for evaluation, to include certain
assessments by the President, to be targeted narrowly, and to
seek to minimize any adverse impact on humanitarian activities.
Section 304. Presidential report before imposition of controls
Section 304(a) directs the President to submit a report to
the committees of jurisdiction prior to imposing a foreign
policy export control. Section 304(b) details the contents of
such report.
Section 305. Imposition of controls
Section 305 authorizes the President to impose a foreign
policy export control after the submission of the report
required under section 304 and notice of the imposition of the
control is published in the Federal Register.
Section 306. Deferral authority
Section 306 authorizes the President to defer compliance
with the requirements of sections 302(a), 304, or 305 if he
determines that deferral is in the U.S. national interest and
compliance occurs not later than 60 days after the foreign
policy export control is imposed.
Section 307. Review, renewal, and termination
Section 307(a)(1) provides that foreign policy export
controls shall terminate on March 31 of each renewal year,
defined as 2003 and every two years thereafter, unless
specifically renewed by the President. Section 307(a)(2)
provides an exception for a foreign policy export control that
is required by law, is targeted against a country designated as
supporting international terrorism, or has been in effect for
less than one year as of February 1 of a renewal year. Section
307(b) requires the President to review all foreign policy
export controls in effect and, during the review period,
consult with the committees of jurisdiction and provide for a
period of public comment on the renewal of each export control.
Section 307(c) requires the President to submit to the
committees of jurisdiction a report on each export control he
wishes to renew.
Section 308. Termination of controls under this title
Section 308(a) requires the President to terminate any
foreign policy export control that has substantially achieved
the objective for which it was imposed, and authorizes him to
terminate at any time any foreign policy export control that is
not required by law 30 days after consulting with the
International Relations Committee of the House of
Representatives and the Foreign Relations Committee of the
Senate. Section 308(b) provides an exception for foreign policy
export controls imposed against countries designated as
supporting international terrorism.
Section 309. Compliance with international obligations
Section 309 authorizes the President to control exports of
items listed on the control list of a multilateral export
regime, or in order to comply with resolutions of the United
Nations, treaties, or other international agreements and
arrangements.
Section 310. Designation of countries supporting international
terrorism
Section 310(a) requires a license for the export of an item
to a country if the Secretary of State has determined that the
government of the country has repeatedly provided support for
international terrorism, and the export of the item could make
a significant contribution to the military potential of the
country or its ability to support international terrorism.
Section 310(b) requires the Secretaries of Commerce and State
to notify the committees of jurisdiction at least 30 days
before issuing a license under section 310(a). Section 310(c)
requires the Secretary of State to publish each determination
made under section 310(a) in the Federal Register. Section
310(d) provides that a designation made under section 310(a)
shall not be rescinded unless the President submits to the
Speaker of the House of Representatives, and the Chairmen of
the Committees on Banking, Housing, and Urban Affairs and on
Foreign Relations of the Senate a report making certain
certifications about the government of the designated country.
Section 311. Crime control instruments
Section 311 continues and expands existing export control
law and regulations governing the export of crime control and
detection equipment by ensuring that any such equipment that is
``especially susceptible to abuse as implements of torture''
would not go to countries that repeatedly engage in torture.
Subsection (a) restates existing law that all crime control and
detection equipment shall be subject to an individual export
license. Subsection (b) mandates that determinations made by
the Secretary of Commerce in composing the list of crime
control and detection equipment subject to controls, and the
approval or denial for export of such equipment, will require
the concurrence of the Secretary of State. Subsection (c)
prohibits the export of such equipment that is especially
susceptible to abuse for torture to countries or groups that
have repeatedly engaged in acts of torture, unless the
Secretaries of Commerce and State agree that the purchaser of
the equipment has not been engaged in torture. Subsection (c)
also requires the Secretary of Commerce to publish a list of
crime control equipment designated as ``especially
susceptible'' to abuse for the information of exporters.
Subsection (d) excepts NATO and major non-NATO allies from the
general licensing requirement of subsection (a); however,
subsection (e) imposes a blanket prohibition on the export to
any destination (including NATO and major non-NATO allies) of
leg irons, saps, blackjacks, electroshock stun belts,
thumbcuffs and items specifically designed as implements of
torture, and components produced for incorporation into these
items and the technology used for the development or production
of these items. Finally, subsection (f) defines ``act of
torture.''
Amnesty International reports that governments that
repeatedly engage in torture against detained persons
frequently use crime control equipment from the U.S. and other
Western suppliers as ready-made implements of torture. Most of
this equipment, including electroshock discharge weapons, can
be purchased domestically by private U.S. citizens for ``self-
defense'' purposes. However, private U.S. citizens--as well as
U.S. law enforcement officials--are subject to prosecution
under Federal law for any abuse of these implements as torture
tools. Exports of these same items, however, should be
regulated to countries that use torture as part of official or
condoned practice and may have unreliable or nonexistent
systems of judicial accountability for torture abuse.
It is the Committee's expectation that this category of
items identified by the Secretary of Commerce as ``especially
susceptible to abuse'' not be so broad as to include any crime
control item that could be put to incidental use for torture.
Finally, with regard to section 311's prohibition of the export
of certain equipment to any destination, including components
produced for incorporation into these items and the technology
used for the development or production of these items, it is
the Committee's intent that this section should not be
understood as applying to equipment of general use, such as
machine tools or other equipment that could be used for
manufacture of implements of terror but are not used
specifically for that purpose.
Section 312. Measures to Protect the Public Health
Section 312 begins to address in a meaningful way the
problem of under-regulated clinical trials of experimental
drugs and other test articles on human participants in other
countries. Subsection 312(a) prohibits the unlicensed export of
test articles which are intended for clinical investigations.
Section 312(b) establishes the criteria by which the President
may grant export licenses to applicants. Notably, section
312(b) requires applicants to identify each clinical
investigation for which the export of a test article is
intended and submit proof to the President that the protocols
for such clinical investigations have been approved by an
institutional review board as meeting the requirements of the
Federal Food, Drug, and Cosmetic Act, and its accompanying
regulations, for protecting the rights and welfare of human
subjects. Section 312(c) requires the President to report
annually to the committees of jurisdiction the names of
applicants and approved applicants for export licenses as well
as the countries importing the test articles which are intended
for clinical investigation. Section 312(d) exempts certain
countries with regulatory schemes which are substantially
equivalent to the Federal Food, Drug, and Cosmetic Act
framework from the provisions of this section. Section 312(e)
defines the terms which are used in this section.
Section 313. Promotion of Safe Environments
Section 313 addresses the problem of the uncontrolled
international export of potentially hazardous pesticides and
related chemicals. Current United States law does not prohibit
the export of pesticides or chemicals that the Environmental
Protection Agency (EPA) has either deemed too dangerous for
domestic use or has never formally evaluated. Section 313 is
intended to promote the development of a comprehensive United
States administrative and regulatory framework for measuring,
monitoring and controlling pesticide exports and to determine
the extent to which these potentially hazardous substances are
being exported from the United States. The Committee wishes to
emphasize, however, that this legislation is not intended to
supplant or dilute the ongoing process to develop domestic
implementing legislation in connection with various related
international instruments.
The potential scale of the problem is reason for concern. A
study by the California-based Foundation for Advancements in
Science and Education (FASE) conservatively estimates that the
United States exported 3.2 billion pounds of pesticides from
1997-2000--an average of 2.2 million pounds per day or 45 tons
per hour. Many millions of pounds of these pesticide and
chemical exports are either banned, severely restricted, never
registered or restricted for use within U.S. borders.
The bulk of United States pesticide exports are bound for
the developing world. In many cases the prevailing conditions
in these countries--insufficient protective equipment, unsafe
storage practices and inadequate training of pesticide
applicators--further compound the dangers to man and
environment that these substances pose. Many countries also
lack adequate technical expertise and knowledge sufficient to
assess the relative safety of given pesticides or shipments. As
a result, the Committee believes that the U.S. should seek to
ensure that U.S. pesticide exports do not pose an undue hazard
to human or environmental safety in either the recipient
countries or the U.S. through the return of pesticide-tainted
foods.
Subsection 313(a) authorizes the President to prohibit
pesticide exports that he deems a potential hazard to human
health or the environment either in the US or a foreign
country. Subsection 313(b) requires the President to provide
Congress with two reports, both of which are to be submitted
within 6 months (180 days) of the Act's enactment. The first
report is expected to identify all US-based companies or
individuals that export the chemicals and pesticides subject to
regulation by certain international conventions or that are
banned, severely restricted, highly regulated, or never
regulated for use in the United States. The President is also
requested to report the quantities of these pesticides and
chemicals that have been exported by these persons during the
previous two years. The President's second report is to
describe the current US systems for measuring, monitoring and
controlling pesticide exports and include recommendations on
how they might be improved. Subsection 313(c) requires that the
GAO, in consultation with the National Academy of Sciences and
other government departments and agencies, provide a report to
Congress not later than 1 year after the date of the Act's
enactment. This report is shall, among other matters, examine
the US regulatory and administrative frameworks governing
pesticide exports, provide an assessment of their effectiveness
and efficiency and of the adequacy of current US statutory and
regulatory authority, compare the US frameworks to those of the
other members of the OECD and provide recommendations
concerning any elements that might be adopted to improve the US
system. In this section, the terms ``highly regulated'' and
``never regulated'' are meant to include but extend beyond the
common terms ``restricted'' and ``never registered'' in order
to ensure that information is gathered on the broadest possible
range of pesticides. These terms are not intended to provide
strict regulatory definitions. The Committee anticipates that
this information will assist in designing any future policy
and/or legislative initiatives.
Section 401. Export license procedures
Section 401 outlines the process by which export license
applications are considered by the Secretary of Commerce and
other departments and agencies. Section 401(a) describes the
responsibilities of the Secretary with regard to export license
procedures, and outlines the criteria for evaluating
applications. Section 401(b) requires the Secretary, within 9
days, to review an application to ensure it is complete, verify
that a license is required for the item, and refer it to the
appropriate departments and agencies. Section 401(c) directs
referral departments and agencies to respond with a
recommendation on a referred application within 30 days of
referral. Section 401(d) provides that within 30 days of
referral, if the referral departments and agencies are in
agreement, the Secretary must issue the license or notify the
applicant of the intent to deny the license; if the referral
departments and agencies are not in agreement, the Secretary
must notify the applicant that the application is subject to
interagency dispute resolution. Section 401(e) requires the
Secretary to inform an applicant of a denial, the statutory and
regulatory basis for the denial, the modifications (if any)
that would permit approval, the considerations that led to the
denial, and the availability of appeal procedures, with
applicants permitted 20 days to cure the application's
deficiencies. Section 401(f) directs the Secretary to establish
an appeals process for application denials; and authorizes the
filing of a petition with the Secretary or the filing of an
action in United States District Court to enforce the time
limits prescribed in this section. Section 401(g) details
certain actions that are not to be included in the time periods
prescribed in the section. The Committee believes that agencies
should be granted additional extensions of the time limits for
review if a particular license application is unusually complex
or presents especially complicated national security or foreign
policy concerns. The Committee adopted an amendment adding such
extensions to such limits for no more than 60 additional days
for these purposes.
Section 401(h) requires the Secretary to notify the
Secretary of Defense, the Secretary of State, and other
appropriate departments or agencies of classification requests,
and to respond within 14 days to the person making the request.
If an objection is raised by the Secretary of Defense or
Secretary of State regarding the Secretary's determination
within that time period, the disagreement shall be resolved
through the interagency resolution process described in section
402, except that any disagreement shall be resolved within 60
days. The Committee assumes that ``classification'' of
commodities will usually be a routine, taxonomic exercise, in
which items are assessed as to which existing category on the
CCL they belong. However, the Committee also notes that there
may be occasions when this assessment may actually become a
determination as to whether a particular item or technology
ought or ought not to be on the Control List at all. This
situation could effectively constitute an independent decision
by the Secretary of Commerce as to what items should be part of
the National Security Control List, and as such would conflict
with Section 202(a)(3), under which the identification of which
items to place on the National Security Control List are made
with the concurrence of the Secretaries of State and Defense.
As such, the Committee believes that the Secretaries of State
and Defense should have the opportunity to object to proposed
classification determinations by the Secretary of Commerce, so
long as objections can be resolved within 60 days. The
Committee expects that this authority will rarely be needed;
however, it will be in those rare cases where there is serious
doubt that this authority to object will ensure that U.S.
security and foreign policy interests will be protected.
Section 402. Interagency dispute resolution process
Section 402(a) provides that all license applications on
which agreement cannot be reached shall be referred to the
interagency dispute resolution process for decision. Section
402(b)(1) directs the Secretary of Commerce to establish an
interagency committee for review of license applications on
which there is disagreement, and authorizes the chair of that
committee to consider the positions of the referral departments
and agencies and make decisions on applications. Section
402(b)(2) states that the analytic product of the intelligence
community should be fully considered with regard to proposed
licenses. Section 402(b) further directs the President to
establish additional levels for review or appeal of any matter
that cannot be resolved pursuant to the process described in
paragraph (1). Each such review shall ensure that matters are
resolved or referred to the President not later than 90 days
after the completed license application is referred by the
Secretary. Section 402(c) directs the Secretary, once a final
decision is made, to promptly issue the license and ensure all
appropriate Department personnel are notified, or notify the
applicant of the intent to deny the application. The Committee
modified the original bill's specific directives as to how the
interagency dispute resolution process should work, including
such minutiae of what would be the voting structure. The
Committee believes that this is too restrictive of the
President's authority to organize interagency decision-making
processes. The Committee was also concerned that the original
bill's voting process could isolate one or more national
security agencies during the process. Currently, the
interagency resolution process operates on consensus; requiring
by statute a majority rules voting structure could encourage a
less-cooperative resolution process than currently exists. The
Committee believes that the President and the agencies involved
need to be able to determine the most effective process for
resolving interagency disputes.
Section 501. International arrangements
Section 501(a) states the policy of the United States with
regard to multilateral arrangements, and encourages the
President to participate in multilateral export control
regimes. Section 501(b) requires the President to submit to the
committees of jurisdiction an annual report evaluating the
effectiveness of each multilateral export control regime and
detailing efforts to strengthen and harmonize the controls of
such regimes. Section 501(c) directs the President to establish
certain features in any multilateral export control regimes in
which the United States is participating. Section 501(d)
directs the President to seek the cooperation of regime members
in establishing certain features in the members' national
export control systems. Section 501(e) directs the President to
seek to achieve certain objectives with regard to multilateral
export control regimes. Section 501(f) requires the Secretary
of Commerce, within 120 days of the date of enactment of the
Act, to publish in the Federal Register and post on the
Department of Commerce website information on multilateral
export control regimes. Section 501(g) encourages the Secretary
to participate in the training of foreign officials regarding
implementation of effective export controls.
Section 502. Foreign boycotts
Section 502 directs the President to issue regulations
prohibiting the participation of U.S. persons in boycotts
imposed by a foreign country against a country that is friendly
to the United States.
Section 503. Penalties
Section 503(a)(1) provides that an individual who willfully
violates the Act shall, for each violation, be fined up to 10
times the value of the exports involved or $1 million,
whichever is greater; imprisoned for up to 10 years; or both.
Section 503(a)(2) provides that an entity that willfully
violates the Act shall, for each violation, be fined up to 10
times the value of the exports involved or $5 million,
whichever is greater. Section 503(b) provides that those
convicted of a willful violation of the Act also shall forfeit
any property that was the subject of the violation or that was
derived from the violation. Section 503(c) authorizes the
Secretary of Commerce to impose civil penalties of up to
$500,000 per violation, and to deny the export privileges of
persons who violate the Act or its regulations. Section 503(f)
provides that persons convicted of violations of certain laws
may, at the discretion of the Secretary, be denied export
privileges for up to 10 years.
Section 504. Missile proliferation control violations
Section 504 requires the President to impose sanctions on
U.S. or foreign persons who knowingly export or trade in items
on the Missile Technology Control Regime (MTCR) Annex, and
provides waiver authority in limited circumstances.
Section 505. Chemical and biological weapons proliferation sanctions
Section 505 requires the President to impose sanctions on
persons who have knowingly and materially contributed to
efforts by certain countries to use, develop, or acquire
chemical or biological weapons, and provides waiver authority
in limited circumstances.
Section 506. Enforcement
Section 506(a) provides general enforcement authorities for
enforcement of the Act. Section 506(b) authorizes forfeiture of
items seized in enforcement of the Act. Section 506(c) provides
that cases involving violations under this Act shall be
referred to the Secretary of Commerce for civil action, or the
Attorney General for criminal action, or to both. Section
506(d) authorizes the use of funds for undercover investigative
operations. Section 506(e) authorizes the use of wiretaps for
enforcement of the Act. Section 506(f) directs the Secretary to
target post-shipment verifications to those exports involving
the greatest risk to national security and to those countries
identified by the Director Central Intelligence in the most
recent report that was submitted to Congress under section 721
of the Intelligence Authorization Act for Fiscal Year 1997 on
the acquisition and supply by foreign countries of dual-use
items and other technology useful for the development or
production of weapons of mass destruction. The Committee
believes that it is necessary that all countries identified by
the Director of Central Intelligence to be involved in
proliferation activities should be the focus of special
enforcement attention through increased post-shipment
verifications. The Committee remains concerned that not enough
inspections have been conducted over the years, and will
continue to monitor the performance of the relevant agencies to
ensure that U.S. dual-use equipment and technology are not
being diverted to forbidden uses. Section 506(g) requires the
Secretary to deny licenses to end-users who refuse to allow
post-shipment verification of a controlled item. Section 506(g)
further requires that if a country with which the United States
has entered into an agreement providing for post-shipment
verifications repeatedly obstructs or otherwise denies the
post-shipment verification of controlled items, the Secretary
shall deny a license for the export of those items or any
substantially identical or directly competitive items or class
of items to all end users in that country until such post-
shipment verification is allowed. Section 506(h) authorizes
$3.5 million to hire 20 additional employees to assist freight
forwarders in developing a voluntary ``best practices''
program. Section 506(i) authorizes $4.5 million to hire 10
additional overseas investigators for post-shipment
verification. Section 506(j) authorizes the Secretary, in
cooperation with the U.S. Customs Service, to undertake
necessary measures to detect unlawful exports and enforce
violations of the Act. Section 506(l) authorizes $5 million for
an export licensing and enforcement computer system. Section
506(o) authorizes $2 million to hire additional license review
officers, and $2 million to conduct training for new license
review officers, auditors, and post-shipment verification
investigators. Section 506(p)(1) authorizes funding in the
amount of $72 million for fiscal year 2002, $73 million for
fiscal year 2003, $74 million for fiscal year 2004, and $76
million for fiscal year 2005, for the Department of Commerce to
carry out the Act. Section 506(p)(2) terminates the authority
granted by the Act on December 31, 2005.
Section 507. Administrative procedures
Section 507 describes the administrative provisions for the
execution of authorities under the Act.
Section 601. Export control authority and regulations
Section 601(a) authorizes the exercise of any function
under the Act not otherwise reserved to the President or
another department to the Secretary of Commerce, and authorizes
the delegation of any function under the Act from the Secretary
to the Under Secretary of Commerce for Export Administration or
other Commerce official. Section 601(b) establishes within the
Department of Commerce an Under Secretary for Export
Administration, an Assistant Secretary for Export
Administration, and an Assistant Secretary for Export
Enforcement, to carry out functions under the Act. Section
601(c) authorizes the President and the Secretary to issue such
regulations as are necessary to carry out the Act, and direct
the Secretary to report to the committees of jurisdiction on
proposed amendments to the regulations including regulations on
the exports to foreign nationals. The Committee continues to be
concerned over the control of technology that may be
communicated to foreign nationals verbally, visually,
electronically or other immaterial means. These transfers of
technology are colloquially known as ``deemed exports,''
because they are as much an export of technology as are
transfers of hardware. As such, they are ``deemed'' to be
exports subject to controls. It is often difficult for
companies to know when such information cannot be communicated
to foreign citizens who may nevertheless be employees,
contractors, or business partners of U.S. companies and
subsidiaries. Consequently, the Committee believes that the
Executive Branch must issue clear regulations that govern the
handling of such sensitive technology.
Section 602. Confidentiality of information
Section 602(a) exempts from disclosure proprietary
information associated with the processing of license
applications. Section 602(b) authorizes Congress and the
General Accounting Office to obtain information from
appropriate departments and agencies regarding activities
conducted in the furtherance of the Act. Section 602(c)
requires the Secretary of Commerce and the Commissioner of
Customs to exchange licensing and enforcement information to
facilitate enforcement efforts. Section 602(d) provides that
any officer or employee who knowingly discloses exempt
information shall, for each violation, be fined up to $50,000
in criminal penalties, imprisoned for up to 1 year, or both; or
shall, for each violation, be fined up to $5,000 in civil
penalties; or may be removed from office or employment, except
that no civil penalty may be imposed on an officer or employee
of the United States, or any department or agency thereof,
without the concurrence of the department or agency employing
such officer or employee.
Section 701. Applicability
Section 701 states that Title VII applies with respect to
exports, and all applications fo rlicenses to export satellites
and related items, notwithstanding any other provision of this
or any other act.
Section 702. Export Controls on Satellites and Related Items
Section 702 requires that all satellites and related items
that were on the Commerce Control List of dual-use items on
October 16, 1998, shall be controlled under this Act subject to
sections 703 and 704.
Section 703. Export License Procedures
Section 703(a) requires the Secretary to refer to the
Secretary of Defense, the Secretary of State, and the heads of
other departments and agencies that the Secretary considers
appropriate, all applications for licenses to export satellites
and related items. Section 703(b) requires the Secretary, the
Secretary of Defense and the Secretary of State, as
appropriate, to consult with the Director of the Central
Intelligence during the review of any application for a license
involving the overseas launch of a commercial satellite of
United State origin. Section 703(c) sets a deadline of 30 days
for departments or agencies to recommend approval or denial of
a export license application under this section. Section 703(d)
outlines the interagency dispute resolution process for
resolving any disagreement between Secretaries on export
license applications under this section.
Section 704. Mandatory State Department Review
Section 704(a) requires that the provision of defense
services by U.S. persons, including services or assistance
provided during technical interchange meetings, in connection
with the launch of a satellite from, or by nationals of, the
People's Republic of China, are subject to section 38 of the
Arms Export Control Act. Section 704(b) requires the President
to notify the Congress pursuant to section 36(c) of the Arms
Export Control Act without regard to the value limitation
thereunder at least 30 days before any export license or
technical assistance agreement is approved
Section 705. Definitions
Section 705 defines the terms used in this title.
Section 706. Conforming Amendments
Section 706 makes necessary technical and conforming
amendments.
Section 707. Effective Date
Section 707 states that this title and the amendments made
by this act shall take effect on the date of enactment of this
act and shall apply to any export license application made
before such date of enactment which is pending on such date.
Section 708. Effect of Existing Law
Section 708 states that nothing in this title shall affect
the continued application of section 36 or 38 of the Arms
Export Control Act, or any other provision of that act, to the
export or other provision of defense services related to items
in Category 4 of the U.S. munitions list.
Section 801. Annual report
Section 801(a) directs the Secretary of Commerce to submit
to Congress, prior to February 1 of each year, a report on the
administration of the Act. Section 801(b) details the specific
items that are to be included in the report. Section 801(c)
provides that whenever information under the Act is required to
be published in the Federal Register, such information also
shall be made available on the Department of Commerce or other
appropriate government website.
Section 802. Relationship to the Arms Export Control Act
Section 802 states that nothing in this act shall be
construed to alter or affect any provision of the Arms Export
Control Act or any authority delegated by the President to the
Secretary of State under the Arms Export Control Act.
Section 803. Enhancement of Congressional Oversight of Nuclear
Transfers to North Korea
Section 803 amends the North Korea Threat Reduction Act of
1999 to add an additional requirement that must be satisfied
before an agreement for cooperation (as defined in sec. 11 b.
of the Atomic Energy Act of 1954 (42 U.S.C. 2014 b.)) between
the United States and North Korea may become effective, and
before any license or other approval may be issued for the
export directly or indirectly to North Korea of any nuclear
material, facilities, components, or other goods, services, or
technology that would be subject to such agreement.
Currently under the North Korea Threat Reduction Act, the
President must determine and report to the Committee on
International Relations of the House of Representatives and the
Committee on Foreign Relations of the Senate that seven
criteria have been satisfied before an agreement for
cooperation between the United States and North Korea may
become effective, and before any license or other approval may
be issued for the export directly or indirectly to North Korea
of any nuclear material, facilities, components, or other
goods, services, or technology that would be subject to such
agreement. Among these criteria are that North Korea has come
into full compliance with its safeguards agreement with the
International Atomic Energy Agency (IAEA), that North Korea has
permitted the IAEA full access to all additional sites and all
information (including historical records) deemed necessary by
the IAEA to verify the accuracy and completeness of North
Korea's initial report of May 4, 1992, to the IAEA on all
nuclear sites and material in North Korea, and that North Korea
is in full compliance with its obligations under the Agreed
Framework between the United States and North Korea of October
21, 1994.
Section 803 adds as an additional requirement that Congress
enact a joint resolution concurring in the President's
determination and report under the North Korea Threat Reduction
Act before an agreement for cooperation between the United
States and North Korea may become effective, and before any
license or other approval may be issued for the export directly
or indirectly to North Korea of any nuclear material,
facilities, components, or other goods, services, or technology
that would be subject to such agreement. The purpose of this
additional requirement is to ensure that not only the
President, but also Congress is persuaded that the evidence
supports the conclusion North Korea is in full compliance with
its non-proliferation obligations before it may receive certain
key nuclear reactor components pursuant to the Agreed
Framework. The Committee believes it appropriate for Congress
to insist on the right to consider and pass judgment on such
evidence, given North Korea's record of defying its obligations
as a party to the Treaty on the Non-proliferation of Nuclear
Weapons, and its history of tense relations with the IAEA.
Section 804. Procedures for Consideration of Joint Resolutions
Section 804 provides expedited procedures in both the House
of Representatives and the Senate to govern consideration of a
joint resolution concurring in a determination and report
submitted by the President pursuant to the North Korea Threat
Reduction Act. The purpose of these procedures is to ensure to
the degree possible that procedural obstacles do not prevent
Congress from considering and either approving or disapproving
such a joint resolution in the event that the President submits
a determination and report pursuant to the North Korea Threat
Reduction Act.
The procedures provided in this section are identical to
those developed by the Committee on Rules during its
consideration during the 106th Congress of H.R. 4251, the
``Congressional Oversight of Nuclear Transfers to North Korea
Act of 2000.'' As modified at the request of the Committee on
Rules, that legislation was approved by the House of
Representatives on May 15, 2000, by a vote of 374-6, but was
not taken up by the Senate.
Section 805. Recommendations of the Judicial Review Commission on
Foreign Asset Control
Section 805 directs the Office of Foreign Assets Control of
the Department of Treasury to publish proposed regulation on
sanctions, provide interpretations and guidelines to accompany
the issuance of regulations, and take steps to expand and
enhance the transparency of its operations and decision-making
standards.
Section 806. Improvements to the Automated Export System
Section 806 requires the Secretary of Commerce, with the
concurrence of the Secretary of State and the Secretary of the
Treasury, to publish Federal regulations in the Federal
Register which requires mandatory filing through the Automated
Export System (AES) the remainder of the exports that were not
covered by regulations issued pursuant to section 1252(b) of
the Security Assistance Act of 1999 (as enacted into law by
section 1000(a)(7) of Public Law 106-113). Section 806 also
requires the Secretary of State to conclude an information
sharing arrangement with the United States Customs Service and
the Census Bureau to adjust the AES to parallel information
currently collected by the Department of State. Finally this
section amends the appropriate sections of U.S. Code to provide
for civil and criminal penalties for failure to file export
information.
Section 807. Technical and conforming amendments
Section 807 contains technical and conforming amendments,
including repeal of the provisions relating to performance
levels of computers in the National Defense Authorization Act
for fiscal year 1998.
Section 808. Savings provisions
Section 808(a) provides that all delegations, rules,
regulations, or other forms of administrative action effective
under certain previous or other statutes and in effect on the
date of enactment of this Act shall continue in effect unless
superseded. Section 808(b) provides that the Act does not
affect administrative or judicial proceedings commenced under
the Export Administration Act of 1979 or Executive Order 12924.
Section 808(c) ensures that determinations regarding support of
international terrorism made under the Export Administration
Act of 1979 or Executive Order 12924 shall be deemed to be made
under section 310 of this Act. Section 808(d) provides that the
prohibitions of the Act do not apply to transactions subject to
the requirements of the National Security Act of 1947, and that
nothing shall affect the responsibilities and authorities of
the Director of Central Intelligence under Section 103 of the
National Security Act of 1947. Section 808(e) requires the
Secretary of Commerce to make any revisions to current
regulations required under the Act no later than 180 days after
the date of enactment of this Act.
New Advisory Committees
Under H.R. 2581, Sec. 105, the Secretary may appoint export
control advisory committees.
Congressional Accountability Act
H.R. 2581 does not apply to the legislative branch.
Federal Mandates
H.R. 2581 provides no Federal mandates.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 45--FOREIGN RELATIONS
* * * * * * *
Sec. 951. Agents of foreign governments
(a) * * *
* * * * * * *
(e) Notwithstanding paragraph (d)(4), any person engaged in
a legal commercial transaction shall be considered to be an
agent of a foreign government for purposes of this section if--
(1) * * *
(2) such person--
(A) * * *
(B) has been convicted of, or has entered a
plea of nolo contendere with respect to, any
offense under section 792 through 799, 831, or
2381 of this title [or under section 11 of the
Export Administration Act of 1979], under
section 11 of the Export Administration Act of
1979 (prior to its repeal by the Export
Administration Act of 2001), or under section
503 of the Export Administration Act of 2001,
except that the provisions of this subsection
shall not apply to a person described in this
clause for a period of more than five years
beginning on the date of the conviction or the
date of entry of the plea of nolo contendere,
as the case may be.
* * * * * * *
CHAPTER 46--FORFEITURE
* * * * * * *
Sec. 983. General rules for civil forfeiture proceedings
(a) * * *
* * * * * * *
(i) Civil Forfeiture Statute Defined.--In this section, the
term ``civil forfeiture statute''--
(1) * * *
(2) does not include--
(A) * * *
* * * * * * *
(D) the Trading with the Enemy Act (50
U.S.C. App. 1 et seq.); [or]
(E) section 1 of title VI of the Act of
June 15, 1917 (40 Stat. 233; 22 U.S.C. 401)[.];
or
(F) the Export Administration Act of 2001.
* * * * * * *
CHAPTER 95--RACKETEERING
* * * * * * *
Sec. 1956. Laundering of monetary instruments
(a) * * *
* * * * * * *
(c) As used in this section--
(1) * * *
* * * * * * *
(7) the term ``specified unlawful activity''
means--
(A) * * *
* * * * * * *
(D) an offense under section 32 (relating
to the destruction of aircraft), section 37
(relating to violence at international
airports), section 115 (relating to
influencing, impeding, or retaliating against a
Federal official by threatening or injuring a
family member), section 152 (relating to
concealment of assets; false oaths and claims;
bribery), section 215 (relating to commissions
or gifts for procuring loans), section 351
(relating to congressional or Cabinet officer
assassination), any of sections 500 through 503
(relating to certain counterfeiting offenses),
section 513 (relating to securities of States
and private entities), section 542 (relating to
entry of goods by means of false statements),
section 545 (relating to smuggling goods into
the United States), section 549 (relating to
removing goods from Customs custody), section
641 (relating to public money, property, or
records), section 656 (relating to theft,
embezzlement, or misapplication by bank officer
or employee), section 657 (relating to lending,
credit, and insurance institutions), section
658 (relating to property mortgaged or pledged
to farm credit agencies), section 666 (relating
to theft or bribery concerning programs
receiving Federal funds), section 793, 794, or
798 (relating to espionage), section 831
(relating to prohibited transactions involving
nuclear materials), section 844 (f) or (i)
(relating to destruction by explosives or fire
of Government property or property affecting
interstate or foreign commerce), section 875
(relating to interstate communications),
section 956 (relating to conspiracy to kill,
kidnap, maim, or injure certain property in a
foreign country), section 1005 (relating to
fraudulent bank entries), 1006 (relating to
fraudulent Federal credit institution entries),
1007 (relating to Federal Deposit Insurance
transactions), 1014 (relating to fraudulent
loan or credit applications), 1032 (relating to
concealment of assets from conservator,
receiver, or liquidating agent of financial
institution), section 1111 (relating to
murder), section 1114 (relating to murder of
United States law enforcement officials),
section 1116 (relating to murder of foreign
officials, official guests, or internationally
protected persons), section 1201 (relating to
kidnapping), section 1203 (relating to hostage
taking), section 1361 (relating to willful
injury of Government property), section 1363
(relating to destruction of property within the
special maritime and territorial jurisdiction),
section 1708 (theft from the mail), section
1751 (relating to Presidential assassination),
section 2113 or 2114 (relating to bank and
postal robbery and theft), section 2280
(relating to violence against maritime
navigation), section 2281 (relating to violence
against maritime fixed platforms), or section
2319 (relating to copyright infringement),
section 2320 (relating to trafficking in
counterfeit goods and services),, section 2332
(relating to terrorist acts abroad against
United States nationals), section 2332a
(relating to use of weapons of mass
destruction), section 2332b (relating to
international terrorist acts transcending
national boundaries), or section 2339A
(relating to providing material support to
terrorists) of this title, section 46502 of
title 49, United States Code,, a felony
violation of the Chemical Diversion and
Trafficking Act of 1988 (relating to precursor
and essential chemicals), section 590 of the
Tariff Act of 1930 (19 U.S.C. 1590) (relating
to aviation smuggling), section 422 of the
Controlled Substances Act (relating to
transportation of drug paraphernalia), section
38(c) (relating to criminal violations) of the
Arms Export Control Act, [section 11 (relating
to violations) of the Export Administration Act
of 1979] section 503 (relating to penalties) of
the Export Administration Act of 2001, section
206 (relating to penalties) of the
International Emergency Economic Powers Act,
section 16 (relating to offenses and
punishment) of the Trading with the Enemy Act,
any felony violation of section 15 of the Food
Stamp Act of 1977 (relating to food stamp
fraud) involving a quantity of coupons having a
value of not less than $5,000, any violation of
section 543(a)(1) of the Housing Act of 1949
(relating to equity skimming), or any felony
violation of the Foreign Corrupt Practices Act;
or
* * * * * * *
CHAPTER 113B--TERRORISM
* * * * * * *
Sec. 2332d. Financial transactions
(a) Offense.--Except as provided in regulations issued by
the Secretary of the Treasury, in consultation with the
Secretary of State, whoever, being a United States person,
knowing or having reasonable cause to know that a country is
designated under [section 6(j) of the Export Administration Act
(50 U.S.C. App. 2405)] section 310 of the Export Administration
Act of 2001 as a country supporting international terrorism,
engages in a financial transaction with the government of that
country, shall be fined under this title, imprisoned for not
more than 10 years, or both.
* * * * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
* * * * * * *
Sec. 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, Deputy Attorney General,
Associate Attorney General, or any Assistant Attorney General,
any acting Assistant Attorney General, or any Deputy Assistant
Attorney General or acting Deputy Assistant Attorney General in
the Criminal Division specially designated by the Attorney
General, may authorize an application to a Federal judge of
competent jurisdiction for, and such judge may grant in
conformity with section 2518 of this chapter an order
authorizing or approving the interception of wire or oral
communications by the Federal Bureau of Investigation, or a
Federal agency having responsibility for the investigation of
the offense as to which the application is made, when such
interception may provide or has provided evidence of--
(a) * * *
* * * * * * *
(q) any violation of, or conspiracy to violate, the
Export Administration Act of 2001 or the Export
Administration Act of 1979.
* * * * * * *
----------
SECTION 9703 OF TITLE 31, UNITED STATES CODE
Sec. 9703. Department of the Treasury Forfeiture Fund
(a) In General.--There is established in the Treasury of
the United States a fund to be known as the ``Department of the
Treasury Forfeiture Fund'' (referred to in this section as the
``Fund''). The Fund shall be available to the Secretary,
without fiscal year limitation, with respect to seizures and
forfeitures made pursuant to any law (other than section 7301
or 7302 of the Internal Revenue Code of 1986) enforced or
administered by the Department of the Treasury [or the United
States Coast Guard], the United States Coast Guard, or the
Bureau of Export Administration of the Department of Commerce
for the following law enforcement purposes:
(1) * * *
(2) At the discretion of the Secretary--
(A) * * *
(B) purchases of evidence or information
by--
(i) a Department of the Treasury
law enforcement organization with
respect to--
(I) a violation of section
1956 or 1957 of title 18
(relating to money laundering);
[or]
(II) a law, the violation
of which may subject property
to forfeiture under section 981
or 982 of title 18; or
(III) a violation of the
Export Administration Act of
1979, the Export Administration
Act of 2001, or any regulation,
license, or order issued under
those Acts;
* * * * * * *
(p) Definitions.--For purposes of this section--
(1) Department of the treasury law enforcement
organization.--The term ``Department of the Treasury
law enforcement organization'' means the United States
Customs Service, the United States Secret Service, the
Bureau of Alcohol, Tobacco and Firearms, the Internal
Revenue Service, the Federal Law Enforcement Training
Center, the Financial Crimes Enforcement Network, and
any other law enforcement component of the Department
of the Treasury so designated by the Secretary. In
addition, for purposes of this section, the Bureau of
Export Administration of the Department of Commerce
shall be considered to be a Department of the Treasury
law enforcement organization.
* * * * * * *
----------
STROM THURMOND NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1999
* * * * * * *
TITLE XV--MATTERS RELATING TO ARMS CONTROL, EXPORT CONTROLS, AND
COUNTER-PROLIFERATION
* * * * * * *
Subtitle B--Satellite Export Controls
* * * * * * *
SEC. 1513. SATELLITE CONTROLS UNDER THE UNITED STATES MUNITIONS LIST.
[(a) Control of Satellites on the United States Munitions
List.--Notwithstanding any other provision of law, all
satellites and related items that are on the Commerce Control
List of dual-use items in the Export Administration Regulations
(15 CFR part 730 et seq.) on the date of the enactment of this
Act shall be transferred to the United States Munitions List
and controlled under section 38 of the Arms Export Control Act
(22 U.S.C. 2778).]
* * * * * * *
(c) Effective Date.--[(1) Subsection (a) shall take effect
on March 15, 1999, and shall not apply to any export license
issued before such effective date or to any export license
application made under the Export Administration Regulations
before such effective date.]
[(2)] The amendments made by subsection (b) shall be
effective as of October 1, 1998.
* * * * * * *
SEC. 1514. NATIONAL SECURITY CONTROLS ON SATELLITE EXPORT LICENSING.
(a) Actions by the President.--Notwithstanding any other
provision of law, the President shall take such actions as are
necessary to implement the following requirements for improving
national security controls in the export licensing of
satellites and related items:
(1) * * *
* * * * * * *
(6) Mandatory sharing of approved licenses and
agreements.--The [Secretary of State] Secretary of
Commerce and the Secretary of State shall provide
copies of all approved export licenses and technical
assistance agreements associated with launches in
foreign countries of satellites to the Secretaries of
Defense and Energy, the Director of Central
Intelligence, and the Director of the Arms Control and
Disarmament Agency.
* * * * * * *
----------
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2000
* * * * * * *
TITLE XIV--PROLIFERATION AND EXPORT CONTROLS
Sec. 1401. Adherence of People's Republic of China to Missile Technology
Control Regime.
* * * * * * *
[Sec. 1410. Timely notification of licensing decisions by the Department
of State.]
* * * * * * *
SEC. 1404. SECURITY IN CONNECTION WITH SATELLITE EXPORT LICENSING.
As a condition of the export license for any satellite to
be launched in a country subject to section 1514 of the Strom
Thurmond National Defense Authorization Act for Fiscal Year
1999 (22 U.S.C. 2778 note), the [Secretary of State] Secretary
of Commerce or the Secretary of State, as the case may be,
shall require the following:
(1) * * *
* * * * * * *
[SEC. 1410. TIMELY NOTIFICATION OF LICENSING DECISIONS BY THE
DEPARTMENT OF STATE.
[Not later than 180 days after the date of the enactment of
this Act, the Secretary of State shall prescribe regulations to
provide timely notice to the manufacturer of a commercial
satellite of United States origin of the final determination of
the decision on the application for a license involving the
overseas launch of such satellite.]
SEC. 1411. ENHANCED INTELLIGENCE CONSULTATION ON SATELLITE LICENSE
APPLICATIONS.
(a) Consultation During Review of Applications.--The
Secretary of State and Secretary of Defense, as appropriate,
shall consult with the Director of Central Intelligence during
the review of any application for a license [involving the
overseas launch of a commercial satellite of United States
origin] to provide defense services referred to in section 704
of the Export Administration Act of 2001, in connection with
the launch of a satellite. The purpose of the consultation is
to assure that the launch of the satellite, if the license is
approved, will meet the requirements necessary to protect the
national security interests of the United States.
* * * * * * *
SEC. 1412. INVESTIGATIONS OF VIOLATIONS OF EXPORT CONTROLS BY UNITED
STATES SATELLITE MANUFACTURERS.
(a) * * *
* * * * * * *
(d) Identification of Persons Subject to Investigation.--
The [Secretary of State and] Secretary of Commerce, the
Secretary of State, and the Attorney General shall develop
appropriate mechanisms to identify, for the purposes of
processing export licenses for commercial satellites, persons
who are the subject of an investigation described in subsection
(a).
* * * * * * *
----------
TITLE XIII OF THE ADMIRAL JAMES W. NANCE AND MEG DONOVAN FOREIGN
RELATIONS AUTHORIZATION ACT, FISCAL YEARS 2000 AND 2001
DIVISION A--DEPARTMENT OF STATE PROVISIONS
* * * * * * *
TITLE XIII--MISCELLANEOUS PROVISIONS
Sec. 1301. Publication of arms sales certifications.
* * * * * * *
[Sec. 1309. Effective regulation of satellite export activities.]
Sec. 1309. Office of Defense Trade Controls.
* * * * * * *
TITLE XIII--MISCELLANEOUS PROVISIONS
* * * * * * *
[SEC. 1309. EFFECTIVE REGULATION OF SATELLITE EXPORT ACTIVITIES.
[(a) Licensing regime.--
[(1) Establishment.--The Secretary of State shall
establish a regulatory regime for the licensing for
export of commercial satellites, satellite
technologies, their components, and systems which shall
include expedited approval, as appropriate, of the
licensing for export by United States companies of
commercial satellites, satellite technologies, their
components, and systems, to NATO allies and major non-
NATO allies (as used within the meaning of section
644(q) of the Foreign Assistance Act of 1961).
[(2) Requirements.--For proposed exports to those
nations which meet the requirements of paragraph (1),
the regime should include expedited processing of
requests for export authorizations that--
[(A) are time-critical, including a
transfer or exchange of information relating to
a satellite failure or anomaly in-flight or on-
orbit;
[(B) are required to submit bids to
procurements offered by foreign persons;
[(C) relate to the re-export of unimproved
materials, products, or data; or
[(D) are required to obtain launch and on-
orbit insurance.
[(3) Additional requirements.--In establishing the
regulatory regime under paragraph (1), the Secretary of
State shall ensure that--
[(A) United States national security
considerations and United States obligations
under the Missile Technology Control Regime are
given priority in the evaluation of any
license; and
[(B) such time is afforded as is necessary
for the Department of Defense, the Department
of State, and the United States intelligence
community to conduct a review of any license.]
SEC. 1309. OFFICE OF DEFENSE TRADE CONTROLS.
[(b) Financial and Personnel Resources.--]Of the funds
authorized to be appropriated in section 101(1)(A), $9,000,000
is authorized to be appropriated for the Office of Defense
Trade Controls of the Department of State for each of the
fiscal years 2000 and 2001, to enable that office to carry out
its responsibilities.
[(c) Improvement and Assessment.--The Secretary of State
should, not later than 6 months after the date of the enactment
of this Act, submit to the Congress a plan for--
[(1) continuously gathering industry and public
suggestions for potential improvements in the
Department of State's export control regime for
commercial satellites; and
[(2) arranging for the conduct and submission to
Congress, not later than 15 months after the date of
the enactment of this Act, of an independent review of
the export control regime for commercial satellites as
to its effectiveness at promoting national security and
economic competitiveness.]
* * * * * * *
----------
NORTH KOREA THREAT REDUCTION ACT OF 1999
* * * * * * *
TITLE VIII--MISCELLANEOUS PROVISIONS
* * * * * * *
Subtitle B--North Korea Threat Reduction
Sec. 821. Short title.
* * * * * * *
Sec. 823. Procedures for consideration of joint resolution described in
section 822(a)(2).
Sec. [823.] 824. Definitions.
* * * * * * *
TITLE VIII--MISCELLANEOUS PROVISIONS
* * * * * * *
Subtitle B--North Korea Threat Reduction
SEC. 821. SHORT TITLE.
This subtitle may be cited as the ``North Korea Threat
Reduction Act of 1999''.
SEC. 822. RESTRICTIONS ON NUCLEAR COOPERATION WITH NORTH KOREA.
(a) In General.--Notwithstanding any other provision of law
or any international agreement, no agreement for cooperation
(as defined in sec. 11 b. of the Atomic Energy Act of 1954 (42
U.S.C. 2014 b.)) between the United States and North Korea may
become effective, no license may be issued for export directly
or indirectly to North Korea of any nuclear material,
facilities, components, or other goods, services, or technology
that would be subject to [such agreement,] such agreement (or
that are controlled under the Export Trigger List of the
Nuclear Suppliers Group), and no approval may be given for the
transfer or retransfer directly or indirectly to North Korea of
any nuclear material, facilities, components, or other goods,
services, or technology that would be subject to [such
agreement, until the President] such agreement (or that are
controlled under the Export Trigger List of the Nuclear
Suppliers Group), until--
(1) the President determines and reports to the
Committee on International Relations of the House of
Representatives and the Committee on Foreign Relations
of the Senate that--
[(1)] (A) North Korea has come into full
compliance with its safeguards agreement with
the IAEA (INFCIRC/403), and has taken all steps
that have been deemed necessary by the IAEA in
this regard;
[(2)] (B) North Korea has permitted the
IAEA full access to all additional sites and
all information (including historical records)
deemed necessary by the IAEA to verify the
accuracy and completeness of North Korea's
initial report of May 4, 1992, to the IAEA on
all nuclear sites and material in North Korea;
[(3)] (C) North Korea is in full compliance
with its obligations under the Agreed
Framework;
[(4)] (D) North Korea has consistently
taken steps to implement the Joint Declaration
on Denuclearization, and is in full compliance
with its obligations under numbered paragraphs
1, 2, and 3 of the Joint Declaration on
Denuclearization (excluding in the case of
numbered paragraph 3 facilities frozen pursuant
to the Agreed Framework);
[(5)] (E) North Korea does not have uranium
enrichment or nuclear reprocessing facilities
(excluding facilities frozen pursuant to the
Agreed Framework), and is making no significant
progress toward acquiring or developing such
facilities;
[(6)] (F) North Korea does not have nuclear
weapons and is making no significant effort to
acquire, develop, test, produce, or deploy such
weapons; and
[(7)] (G) the transfer to North Korea of
key nuclear components, under the proposed
agreement for cooperation with North Korea and
in accordance with the Agreed Framework, is in
the national interest of the United States[.];
and
(2) a joint resolution of the two Houses of
Congress is enacted into law--
(A) the matter after the resolving clause
of which is as follows: ``That the Congress
hereby concurs in the determination and report
of the President relating to compliance by
North Korea with certain international
obligations transmitted pursuant to section
822(a)(1) of the North Korea Threat Reduction
Act of 1999.'';
(B) which does not have a preamble; and
(C) the title of which is as follows:
``Joint Resolution relating to compliance by
North Korea with certain international
obligations pursuant to the North Korea Threat
Reduction Act of 1999.''.
* * * * * * *
SEC. 823. PROCEDURES FOR CONSIDERATION OF JOINT RESOLUTION DESCRIBED IN
SECTION 822(A)(2).
(a) Rulemaking.--The provisions of this section are enacted
by the Congress--
(1) as an exercise of the rulemaking power of the
House of Representatives and the Senate, respectively,
and, as such, shall be considered as part of the rules
of either House and shall supersede other rules only to
the extent they are inconsistent therewith; and
(2) with full recognition of the constitutional
right of either House to change the rules so far as
they relate to the procedures of that House at any
time, in the same manner, and to the same extent as in
the case of any other rule of that House.
(b) Introduction and Referral.--
(1) Introduction.--A joint resolution described in
section 822(a)(2)--
(A) shall be introduced in the House of
Representatives by the majority leader or
minority leader or by a Member of the House of
Representatives designated by the majority
leader or minority leader; and
(B) shall be introduced in the Senate by
the majority leader or minority leader or a
Member of the Senate designated by the majority
leader or minority leader.
(2) Referral.--The joint resolution shall be
referred to the Committee on International Relations of
the House of Representatives and the Committee on
Foreign Relations of the Senate.
(c) Discharge of Committees.--If a committee to which a
joint resolution described in section 822(a)(2) is referred has
not reported such joint resolution by the end of 30 days
beginning on the date of its introduction, such committee shall
be discharged from further consideration of such joint
resolution, and such joint resolution shall be placed on the
appropriate calendar of the House involved.
(d) Floor Consideration in the House of Representatives.--
(1) In general.--On or after the third calendar day
(excluding Saturdays, Sundays, or legal holidays,
except when the House of Representatives is in session
on such a day) after the date on which the committee to
which a joint resolution described in section 822(a)(2)
is referred has reported, or has been discharged from
further consideration of, such a joint resolution, it
shall be in order for any Member of the House to move
to proceed to the consideration of the joint
resolution. A Member of the House may make the motion
only on the day after the calendar day on which the
Member announces to the House the Member's intention to
do so. Such motion is privileged and is not debatable.
The motion is not subject to amendment or to a motion
to postpone. A motion to reconsider the vote by which
the motion is agreed to shall not be in order. If a
motion to proceed to the consideration of the joint
resolution is agreed to, the House shall immediately
proceed to consideration of the joint resolution which
shall remain the unfinished business until disposed of.
(2) Debate.--Debate on a joint resolution described
in section 822(a)(2), and on all debatable motions and
appeals in connection therewith, shall be limited to
not more than two hours, which shall be divided equally
between those favoring and those opposing the joint
resolution. An amendment to the joint resolution is not
in order. A motion further to limit debate is in order
and is not debatable. A motion to table, a motion to
postpone, or a motion to recommit the joint resolution
is not in order. A motion to reconsider the vote by
which the joint resolution is agreed to or disagreed to
is not in order.
(3) Appeals.--Appeals from the decisions of the
Chair to the procedure relating to a joint resolution
described in section 822(a)(2) shall be decided without
debate.
(e) Floor Consideration in the Senate.--Any joint
resolution described in section 822(a)(2) 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.
(f) Consideration by the Other House.--If, before the
passage by one House of a joint resolution of that House
described in section 822(a)(2), that House receives from the
other House a joint resolution described in section 822(a)(2),
then the following procedures shall apply:
(1) The joint resolution of the other House shall
not be referred to a committee and may not be
considered in the House receiving it except in the case
of final passage as provided in paragraph (2)(B).
(2) With respect to a joint resolution described in
section 822(a)(2) of the House receiving the joint
resolution--
(A) the procedure in that House shall be
the same as if no joint resolution had been
received from the other House; but
(B) the vote on final passage shall be on
the joint resolution of the other House.
(3) Upon disposition of the joint resolution
received from the other House, it shall no longer be in
order to consider the joint resolution that originated
in the receiving House.
(g) Computation of Days.--In the computation of the period
of 30 days referred to in subsection (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.
SEC. [823.] 824. DEFINITIONS.
In this subtitle:
(1) * * *
* * * * * * *
----------
TITLE 13, UNITED STATES CODE
* * * * * * *
CHAPTER 9--COLLECTION AND PUBLICATION OF FOREIGN COMMERCE AND TRADE
STATISTICS
Sec.
301. Collection and publication.
* * * * * * *
[305. Violations, penalties.]
305. Penalties for unlawful export information activities.
* * * * * * *
Sec. 303. Secretary of Treasury functions
To assist the Secretary to carry out the provisions of
this chapter, the Secretary of the Treasury shall collect
information in the form and manner prescribed by the
regulations issued pursuant to this chapter from persons
engaged in foreign commerce or trade[, other than by mail,] and
from the owners or operators of carriers.
Sec. 304. Filing export information, delayed filings, penalties for
failure to file
(a) The information or reports in connection with the
exportation or transportation of cargo required to be filed by
carriers with the Secretary of the Treasury under any rule,
regulation, or order issued pursuant to this chapter may be
filed after the departure of such carrier from the port or
place of exportation or transportation, whether such departing
carrier is destined directly to a foreign port or place or to a
noncontiguous area, or proceeds by way of other ports or places
of the United States, provided that a bond in an approved form
in [the penal sum of $1,000] a penal sum of $10,000 is filed
with the Secretary of the Treasury. The Secretary of Commerce
may, by a rule, regulation, or order issued in conformity
herewith, prescribe a maximum period after such departure
during which the required information or reports may be filed.
In the event any such information or report is not filed within
such prescribed period, [a penalty not to exceed $100 for each
day's delinquency beyond the prescribed period, but not more
than $1,000, shall be exacted] the Secretary of Commerce (and
officers and employees of the Department of Commerce designated
by the Secretary) may impose a civil penalty not to exceed
$1,000 for each day's delinquency beyond the prescribed period,
but not more than $10,000 per violation. Civil suit may be
instituted in the name of the United States against the
principal and surety for the recovery of any penalties that may
accrue and be exacted in accordance with the terms of the bond.
(b) Any person, other than a person described in
subsection (a), required to submit export information, shall
file such information in accordance with any rule, regulation,
or order issued pursuant to this chapter. In the event any such
information or reports are not filed within such prescribed
period, the Secretary of Commerce (and officers and employees
of the Department of Commerce designated by the Secretary) may
impose a civil penalty not to exceed $1,000 for each day's
delinquency beyond the prescribed period, but not more than
$10,000 per violation.
[(b)] (c) The Secretary may remit or mitigate any penalty
incurred for violations of this section and regulations issued
pursuant thereto if, in his opinion, they were incurred without
willful negligence or fraud, or other circumstances justify a
remission or mitigation.
[Sec. 305. Violations, penalties
[Any person, including the owners or operators of
carriers, violating the provisions of this chapter, or any
rule, regulation, or order issued thereunder, except as
provided in section 304 above, shall be liable to a penalty not
to exceed $1,000 in addition to any other penalty imposed by
law. The amount of any such penalty shall be payable into the
Treasury of the United States and shall be recoverable in a
civil suit in the name of the United States.]
Sec. 305. Penalties for unlawful export information activities
(a) Criminal Penalties.--(1) Any person who knowingly fails
to file or knowingly submits false or misleading export
information through the Shippers Export Declaration (SED) (or
any successor document) or the Automated Export System (AES)
shall be subject to a fine not to exceed $10,000 per violation
or imprisonment for not more than 5 years, or both.
(2) Any person who knowingly reports any information on or
uses the SED or the AES to further any illegal activity shall
be subject to a fine not to exceed $10,000 per violation or
imprisonment for not more than 5 years, or both.
(3) Any person who is convicted under this subsection
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 goods 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.
(b) Civil Penalties.--The Secretary (and officers and
employees of the Department of Commerce specifically designated
by the Secretary) may impose a civil penalty not to exceed
$10,000 per violation on any person violating the provisions of
this chapter or any rule, regulation, or order issued
thereunder, except as provided in section 304. Such penalty may
be in addition to any other penalty imposed by law.
(c) Civil Penalty Procedure.--(1) When a civil penalty is
sought for a violation of this section or of section 304, the
charged party is entitled to receive a formal complaint
specifying the charges and, at his or her request, to contest
the charges in a hearing before an administrative law judge.
Any such hearing shall be conducted in accordance with sections
556 and 557 of title 5.
(2) If any person fails to pay a civil penalty imposed
under this chapter, the Secretary may ask the Attorney General
to commence a civil action in an appropriate district court of
the United States 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
action, the validity, amount, and appropriateness of such
penalty shall not be subject to review.
(3) The Secretary may remit or mitigate any penalties
imposed under paragraph (1) if, in his or her opinion--
(A) the penalties were incurred without willful
negligence or fraud; or
(B) other circumstances exist that justify a
remission or mitigation.
(4) If, pursuant to section 306, the Secretary delegates
functions under this section to another agency, the provisions
of law of that agency relating to penalty assessment, remission
or mitigation of such penalties, collection of such penalties,
and limitations of actions and compromise of claims, shall
apply.
(5) Any amount paid in satisfaction of a civil penalty
imposed under this section or section 304 shall be deposited
into the general fund of the Treasury and credited as
miscellaneous receipts.
(d) Enforcement.--(1) The Secretary of Commerce may
designate officers or employees of the Office of Export
Enforcement to conduct investigations pursuant to this chapter.
In conducting such investigations, those officers or employees
may, to the extent necessary or appropriate to the enforcement
of this chapter, exercise such authorities as are conferred
upon them by other laws of the United States, subject to
policies and procedures approved by the Attorney General.
(2) The Commissioner of Customs may designate officers or
employees of the Customs Service to enforce the provisions of
this chapter, or to conduct investigations pursuant to this
chapter.
(e) Regulations.--The Secretary of Commerce shall
promulgate regulations for the implementation and enforcement
of this section.
(f) Exemption.--The criminal fines provided for in this
section are exempt from the provisions of section 3571 of title
18.
* * * * * * *
----------
EXPORT ADMINISTRATION ACT OF 1979
[AN ACT To provide authority to regulate exports, to improve the
efficiency of export regulation, and to minimize interference with the
ability to engage in commerce.
[Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
[short title
[Section 1. This Act may be cited as the ``Export
Administration Act of 1979''.
[findings
[Sec. 2. The Congress makes the following findings:
[(1) The ability of the United States citizens to
engage in international commerce is a fundamental
concern of United States policy.
[(2) Exports contribute significantly to the
economic well-being of the United States and the
stability of the world economy by increasing employment
and production in the United States, and by earning
foreign exchange, thereby contributing favorably to the
trade balance. The restriction of exports from the
United States can have serious adverse effects on the
balance of payments and on domestic employment,
particularly when restrictions applied by the United
States are more extensive than those imposed by other
countries.
[(3) It is important for the national interest of
the United States that both the private sector and the
Federal Government place a high priority on exports,
consistent with the economic, security, and foreign
policy objectives of the United States.
[(4) The availability of certain materials at home
and abroad varies so that the quantity and composition
of United States exports and their distribution among
importing countries may affect the welfare of the
domestic economy and may have an important bearing upon
fulfillment of the foreign policy of the United States.
[(5) Exports of goods or technology without regard
to whether they make a significant contribution to the
military potential of individual countries or
combinations of countries may adversely affect the
national security of the United States.
[(6) Uncertainty of export control policy can
inhibit the efforts of United States business and work
to the detriment of the overall attempt to improve the
trade balance of the United States.
[(7) Unreasonable restrictions on access to world
supplies can cause worldwide political and economic
instability, interfere with free international trade,
and retard the growth and development of nations.
[(8) It is important that the administration of
export controls imposed for national security purposes
give special emphasis to the need to control exports of
technology (and goods which contribute significantly to
the transfer of such technology) which could make a
significant contribution to the military potential of
any country or combination of countries which would be
detrimental to the national security of the United
States.
[(9) 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.
[(10) It is important that the administration of
export controls imposed for foreign policy purposes
give special emphasis to the need to control exports of
goods and substances hazardous to the public health and
the environment which are banned or severely restricted
for use in the United States, and which, if exported,
could affect the international reputation of the United
States as a responsible trading partner.
[(11) Availability to controlled countries of goods
and technology from foreign sources is a fundamental
concern of the United States and should be eliminated
through negotiations and other appropriate means
whenever possible.
[(12) Excessive dependence of the United States,
its allies, or countries sharing common strategic
objectives with the United States, on energy and other
critical resources from potential adversaries can be
harmful to the mutual and individual security of all
those countries.
[declaration of policy
[Sec. 3. The Congress makes the following declarations:
[(1) It is the policy of the United States to
minimize uncertainties in export control policy and to
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.
[(2) It is the policy of the United States to use
export controls only after full consideration of the
impact on the economy of the United States and only to
the extent necessary--
[(A) to restrict the export of goods and
technology which would make a significant
contribution to the military potential of any
other country or combination of countries which
would prove detrimental to the national
security of the United States;
[(B) to restrict the export of goods and
technology where necessary to further
significantly the foreign policy of the United
States or to fulfill its declared international
obligations; and
[(C) to restrict the export of goods where
necessary to protect the domestic economy from
the excessive drain of scarce materials and to
reduce the serious inflationary impact of
foreign demand.
[(3) It is the policy of the United States (A) to
apply any necessary controls to the maximum extent
possible in cooperation with all nations, and (B) to
encourage observance of a uniform export control policy
by all nations with which the United States has defense
treaty commitments or common strategic objectives.
[(4) It is the policy of the United States to use
its economic resources and trade potential to further
the sound growth and stability of its economy as well
as to further its national security and foreign policy
objectives.
[(5) It is the policy of the United States--
[(A) to oppose 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 goods or technology or 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; and
[(C) to foster international cooperation
and the development of international rules and
institutions to assure reasonable access to
world supplies.
[(6) It is the policy of the United States that the
desirability of subjecting, or continuing to subject,
particular goods or technology or other information to
United States export controls should be subjected to
review by and consultation with representatives of
appropriate United States Government agencies and
private industry.
[(7) It is the policy of the United States to use
export controls, including license fees, to secure the
removal by foreign countries of restrictions on access
to supplies where such restrictions have or may have a
serious domestic inflationary impact, have caused or
may cause a serious domestic shortage, or have been
imposed for purposes of influencing the foreign policy
of the United States. In effecting this policy, the
President shall make reasonable and prompt efforts to
secure the removal or reduction of such restrictions,
policies, or actions through international cooperation
and agreement before imposing export controls. No
action taken in fulfillment of the policy set forth in
this paragraph shall apply to the export of medicine or
medical supplies.
[(8) It is the policy of the United States to use
export controls 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
achieve this objective, the President shall make
reasonable and prompt efforts to secure the removal or
reduction of such assistance to international
terrorists through international cooperation and
agreement before imposing export controls.
[(9) It is the policy of the United States to
cooperate with other countries with which the United
States has defense treaty commitments or common
strategic objectives in restricting the export of goods
and technology which would make a significant
contribution to the military potential of any country
or combination of countries which would prove
detrimental to the security of the United States and of
those countries with which the United States has
defense treaty commitments, or common strategic
objectives, and to encourage other friendly countries
to cooperate in restricting the sale of goods and
technology that can harm the security of the United
States.
[(10) It is the policy of the United States that
export trade by United States citizens be given a high
priority and not be controlled except when such
controls (A) are necessary to further fundamental
national security, foreign policy, or short supply
objectives, (B) will clearly further such objectives,
and (C) are administered consistent with basic
standards of due process.
[(11) It is the policy of the United States to
minimize restrictions on the export of agricultural
commodities and products.
[(12) It is the policy of the United States to
sustain vigorous scientific enterprise. To do so
involves sustaining the ability of scientists and other
scholars freely to communicate research findings, in
accordance with applicable provisions of law, by means
of publication, teaching, conferences, and other forms
of scholarly exchange.
[(13) It is the policy of the United States to
control the export of goods and substances banned or
severely restricted for use in the United States in
order to foster public health and safety and to prevent
injury to the foreign policy of the United States as
well as to the credibility of the United States as a
responsible trading partner.
[(14) It is the policy of the United States to
cooperate with countries which are allies of the United
States and countries which share common strategic
objectives with the United States in minimizing
dependence on imports of energy and other critial
resources from potential adversaries and in developing
alternative supplies of such resources in order to
minimize strategic threats posed by excessive hard
currency earnings derived from such resource exports by
countries with policies adverse to the security
interests of the United States.
[general provisions
[Sec. 4. (a) Types of Licenses.--Under such conditions as
may be imposed by the Secretary which are consistent with the
provisions of this Act, the Secretary may require any of the
following types of export licenses:
[(1) A validated license, authorizing a specific
export, issued pursuant to an application by the
exporter.
[(2) Validated licenses authorizing multiple
exports, issued pursuant to an application by the
exporter, in lieu of an individual validated license
for each such export, including, but not limited to,
the following:
[(A) A distribution license, authorizing
exports of goods to approved distributors or
users of the goods in countries other than
controlled countries, except that the Secretary
may establish a type of distribution license
appropriate for consignees in the People's
Republic of China. The Secretary shall grant
the distribution license primarily on the basis
of the reliability of the applicant and foreign
consignees with respect to the prevention of
diversion of goods to controlled countries. The
Secretary shall have the responsibility of
determining, with the assistance of all
appropriate agencies, the reliability of
applicants and their immediate consignees. The
Secretary's determination shall be based on
appropriate investigations of each applicant
and periodic reviews of licensees and their
compliance with the terms of licenses issued
under this Act. Factors such as the applicant's
products or volume of business, or the
consignees' geographic location, sales
distribution area, or degree of foreign
ownership, which may be relevant with respect
to individual cases, shall not be determinative
in creating categories or general criteria for
the denial of applications or withdrawal of a
distribution license.
[(B) A comprehensive operations license,
authorizing exports and reexports of technology
and related goods, including items from the
list of militarily critical technologies
developed pursuant to section 5(d) of this Act
which are included on the control list in
accordance with that section, from a domestic
concern to and among its foreign subsidiaries,
affiliates, joint venturers, and licensees that
have long-term, contractually defined relations
with the exporter, are located in countries
other than controlled countries (except the
People's Republic of China), and are approved
by the Secretary. The Secretary shall grant the
license to manufacturing, laboratory, or
related operations on the basis of approval of
the exporter's systems of control, including
internal proprietary controls, applicable to
the technology and related goods to be exported
rather than approval of individual export
transactions. The Secretary and the
Commissioner of Customs, consistent with their
authorities under section 12(a) of this Act,
and with the assistance of all appropriate
agencies, shall periodically, but not less
frequently than annually, perform audits of
licensing procedures under this subparagraph in
order to assure the integrity and effectiveness
of those procedures.
[(C) A project license, authorizing exports
of goods or technology for a specified
activity.
[(D) A service supply license, authorizing
exports of spare or replacement parts for goods
previously exported.
[(3) A general license, authorizing exports,
without application by the exporter.
[(4) Such other licenses as may assist in the
effective and efficient implementation of this Act.
[(b) Control List.--The Secretary shall establish and
maintain a list (hereinafter in this Act referred to as the
``control list'') stating license requirements (other than for
general licenses) for exports of goods and technology under
this Act.
[(c) Foreign Availability.--In accordance with the
provisions of this Act, the President shall not impose export
controls for foreign policy or national security purposes on
the export from the United Staes of goods or technology which
he determines are available without restriction from sources
outside the United States in sufficient quantities and
comparable in quality to those produced in the United States,
so as to render the controls ineffective in achieving their
purposes unless the President determines that adequate evidence
has been presented to him demonstrating that the absence of
such controls would prove detrimental to the foreign policy or
national security of the United States. In complying with the
provisions of this subsection, the President shall give strong
emphasis to bilateral or multilateral negotiations to eliminate
foreign availability. The Secretary and the Secretary of
Defense shall cooperate in gathering information relating to
foreign availability, including the establishment and
maintenance of a jointly operated computer system.
[(d) Right of Export.--No authority or permission to export
may be required under this Act, or under regulations issued
under this Act, except to carry out the policies set forth in
section 3 of this Act.
[(e) Delegation of Authority.--The President may delegate
the power, authority, and discretion conferred upon him by this
Act to such departments, agencies, or officials of the
Government as he may consider appropriate, except that no
authority under this Act 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, and discretion to overrule or
modify any recommendation or decision made by the Secretary,
the Secretary of Defense, or the Secretary of State pursuant to
the provisions of this Act.
[(f) 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 Act with a view to encouraging trade.
The Secretary shall meet 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 goods and technology.
[(g) Fees.--No fee may be charged in connection with the
submission or processing of an export license application.
[national security controls
[Sec. 5. (a) Authority.--(1) In order to carry out the
policy set forth in section 3(2)(A) of this Act, the President
may, in accordance with the provisions of this section,
prohibit or curtail the export of any goods or technology
subject to the jurisdiction of the United States or exported by
any person subject to the jurisdiction of the United States.
The authority contained in this subsection includes the
authority to prohibit or curtail the transfer of goods or
technology within the United States to embassies and affiliates
of controlled countries. For purposes of the preceding
sentence, the term ``affiliates'' includes both governmental
entities and commercial entities that are controlled in fact by
controlled countries. The authority contained in this
subsection shall be exercised by the Secretary, in consultation
with the Secretary of Defense, and such other departments and
agencies as the Secretary considers appropriate, and shall be
implemented by means of export licenses described in section
4(a) of this Act.
[(2) Whenever the Secretary makes any revision with respect
to any goods or technology, or with respect to the countries or
destinations, affected by export controls imposed under this
section, the Secretary shall publish in the Federal Register a
notice of such revision and shall specify in such notice that
the revision relates to controls imposed under the authority
contained in this section.
[(3) In issuing regulations to carry out this section,
particular attention shall be given to the difficulty of
devising effective safeguards to prevent a country that poses a
threat to the security of the United States from diverting
critical technologies to military use, the difficulty of
devising effective safeguards to protect critical goods, and
the need to take the effective measures to prevent the reexport
of critical technologies from other countries to countries that
pose a threat to the security of the United States.
[(4)(A) No authority or permission may be required under
this section to reexport any goods or technology subject to the
jurisdiction of the United States to any country which
maintains export controls on such goods or technology
cooperatively with the United States pursuant to the agreement
of the group known as the Coordinating Committee, or pursuant
to an agreement described in subsection (k) of this section.
The Secretary may require any person reexporting any goods or
technology under this subparagraph to notify the Secretary of
such reexports.
[(B) Notwithstanding subparagraph (A), the Secretary may
require authority or permission to reexport the following:
[(i) supercomputers;
[(ii) goods or technology for sensitive nuclear
uses (as defined by the Secretary);
[(iii) devices for surreptitious interception of
wire or oral communications; and
[(iv) goods or technology intended for such end
users as the Secretary may specify by regulation.
[(5)(A) Except as provided in subparagraph (B), no
authority or permission may be required under this section to
reexport any goods or technology subject to the jurisdiction of
the United States from any country when the goods or technology
to be reexported are incorporated in another good and--
[(i) the value of the controlled United States
content of that other good is 25 percent or less of the
total value of the good; or
[(ii) the export of the goods or technology to a
controlled country would require only notification of
the participating governments of the Coordinating
Committee.
For purposes of this paragraph, the ``controlled United States
content'' of a good means those goods or technology subject to
the jurisdiction of the United States which are incorporated in
the good, if the export of those goods or technology from the
United States to a country, at the time that the good is
exported to that country, would require a validated license.
[(B) The Secretary may by regulation provide that
subparagraph (A) does not apply to the reexport of a
supercomputer which contains goods or technology subject to the
jurisdiction of the United States.
[(6) Not later than 90 days after the date of the enactment
of this paragraph, the Secretary shall issue regulations to
carry out paragraphs (4) and (5). Such regulations shall define
the term ``supercomputer'' for purposes of those paragraphs.
[(b) Policy Toward Individual Countries.--(1) In
administering export controls for national security purposes
under this section, the President shall establish as a list of
controlled countries those countries set forth in section
620(f) of the Foreign Assistance Act of 1961, except that the
President may add any country to or remove any country from
such list of controlled countries if he determines that the
export of goods or technology to such country would or would
not (as the case may be) make a significant contribution to the
military potential of such country or a combination of
countries which would prove detrimental to the national
security of the United States. In determining whether a country
is added to or removed from the list of controlled countries,
the President shall take into account--
[(A) the extent to which the country's policies are
adverse to the national security interests of the
United States;
[(B) the country's Communist or non-Communist
status;
[(C) the present and potential relationship of the
country with the United States;
[(D) the present and potential relationship of the
country with countries friendly or hostile to the
United States;
[(E) the country's nuclear weapons capability and
the country's compliance record with respect to
multilateral nuclear weapons agreements to which the
United States is a party; and
[(F) such other factors as the President considers
appropriate.
Nothing in the preceding sentence shall be interpreted to limit
the authority of the President provided in this Act to prohibit
or curtail the export of any goods or technology to any country
to which exports are controlled for national security purposes
other than countries on the list of controlled countries
specified in this paragraph. The President shall review not
less frequently than every three years in the case of controls
maintained cooperatively with other nations, and annually in
the case of all other controls, United States policy toward
individual countries to determine whether such policy is
appropriate in light of the factors set forth in this
paragraph.
[(2)(A) Except as provided in subparagraph (B), no
authority or permission may be required under this section to
export goods or technology to a country which maintains export
controls on such goods or technology cooperatively with the
United States pursuant to the agreement of the group known as
the Coordinating Committee or pursuant to an agreement
described in subsection (k) of this section, if the export of
such goods or technology to the People's Republic of China or a
controlled country on the date of the enactment of the Export
Enhancement Act of 1988 would require only notification of the
participating governments of the Coordinating Committee.
[(B)(i) The Secretary may require a license for the export
of goods or technology described in subparagraph (A) to such
end users as the Secretary may specify by regulation.
[(ii) The Secretary may require any person exporting goods
or technology under this paragraph to notify the Secretary of
those exports.
[(C) The Secretary shall, within 3 months after the date of
the enactment of the Export Enhancement Act of 1988, determine
which countries referred to in subparagraph (A) are
implementing an effective export control system consistent with
principles agreed to in the Coordinating Committee, including
the following:
[(i) national laws providing appropriate civil and
criminal penalties and statutes of limitations
sufficient to deter potential violations;
[(ii) 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;
[(iii) an enforcement mechanism that provides
authority for trained enforcement officers to
investigate and prevent illegal exports;
[(iv) a system of export control documentation to
verify the movement of goods and technology; and
[(v) procedures for the coordination and exchange
of information concerning violations of the agreement
of the Coordinating Committee.
The Secretary shall, at least once each year, review the
determinations made under the preceding sentence with respect
to all countries referred to in subparagraph (A). The Secretary
may, as appropriate, add countries to, or remove countries
from, the list of countries that are implementing an effective
export control system in accordance with this subparagraph. No
authority or permission to export may be required for the
export of goods or technology to a country on such list.
[(3)(A) No authority or permission may be required under
this section to export to any country, other than a controlled
country, any goods or technology if the export of the goods or
technology to controlled countries would require only
notification of the participating governments of the
Coordinating Committee.
[(B) The Secretary may require any person exporting any
goods or technology under subparagraph (A) to notify the
Secretary of those exports.
[(c) Control List.--(1) The Secretary shall establish and
maintain, as part of the control list, a list of all goods and
technology subject to export controls under this section. Such
goods and technology shall be clearly identified as being
subject to controls under this section.
[(2) The Secretary of Defense and other appropriate
departments and agencies shall identify goods and technology
for inclusion on the list referred to in paragraph (1). Those
items which the Secretary and the Secretary of Defense concur
shall be subject to export controls under this section shall
comprise such list. If the Secretary and the Secretary of
Defense are unable to concur on such items, as determined by
the Secretary, the Secretary of Defense may, within 20 days
after receiving notification of the Secretary's determination,
refer the matter to the President for resolution. The Secretary
of Defense shall notify the Secretary of any such referral. The
President shall, not later than 20 days after such referral,
notify the Secretary of his determination with respect to the
inclusion of such items on the list. Failure of the Secretary
of Defense to notify the President or the Secretary, or failure
of the President to notify the Secretary, in accordance with
this paragraph, shall be deemed by the Secretary to constitute
concurrence in the implementation of the actions proposed by
the Secretary regarding the inclusion of such items on the
list.
[(3) The Secretary shall conduct partial reviews of the
list established pursuant to this subsection at least once each
calendar quarter in order to carry out the policy set forth in
section 3(2)(A) of this Act and the provisions of this section,
and shall promptly make such revisions of the list as may be
necessary after each such review. Before beginning each
quarterly review, the Secretary shall publish notice of that
review in the Federal Register. The Secretary shall provide a
30-day period during each review for comment and the submission
of data, with or without oral presentation, by interested
Government agencies and other affected or potentially affected
parties. After consultation with appropriate Government
agencies, the Secretary shall make a determination of any
revisions in the list within 30 days after the end of the
review period. The concurrence or approval of any other
department or agency is not required before any such revision
is made. The Secretary shall publish in the Federal Register
any revisions in the list, with an explanation of the reasons
for the revisions. The Secretary shall use the data developed
from each review in formulating United States proposals
relating to multilateral export controls in the group known as
the Coordinating Committee. The Secretary shall further assess,
as part of each review, the availability from sources outside
the United States of goods and technology comparable to those
subject to export controls imposed under this section. All
goods and technology on the list shall be reviewed at least
once each year. The provisions of this paragraph apply to
revisions of the list which consist of removing items from the
list or making changes in categories of, or other
specifications in, items on the list.
[(4) The appropriate technical advisory committee appointed
under subsection (h) of this section shall be consulted by the
Secretary with respect to changes, pursuant to paragraph (2) or
(3), in the list established pursuant to this subsection, and
such technical advisory committee may submit recommendations to
the Secretary with respect to such changes. The Secretary shall
consider the recommendations of the technical advisory
committee and shall inform the committee of the disposition of
its recommendations.
[(5)(A) Not later than 6 months after the date of the
enactment of this paragraph, the following shall no longer be
subject to export controls under this section:
[(i) All goods or technology the export of which to
controlled countries on the date of the enactment of
the Export Enhancement Act of 1988 would require only
notification of the participating governments of the
Coordinating Committee, except for those goods or
technology on which the Coordinating Committee agrees
to maintain such notification requirement.
[(ii) All medical instruments and equipment,
subject to the provisions of subsection (m) of this
section.
[(B) The Secretary shall submit to the Congress annually a
report setting forth the goods and technology from which export
controls have been removed under this paragraph.''.
[(6)(A) Notwithstanding subsection (f) or (h)(6) of this
section, any export control imposed under this section which is
maintained unilaterally by the United States shall expire 6
months after the date of the enactment of this paragraph, or 6
months after the export control is imposed, whichever date is
later, except that--
[(i) any such export controls on those goods or
technology for which a determination of the Secretary
that there is no foreign availability has been made
under subsection (f) or (h)(6) of this section before
the end of the applicable 6-month period and is in
effect may be renewed for periods of not more than 6
months each, and
[(ii) any such export controls on those goods or
technology with respect to which the President, by the
end of the applicable 6-month period, is actively
pursuing negotiations with other countries to achieve
multilateral export controls on those goods or
technology may be renewed for 2 periods of not more
than 6 months each.
[(B) Export controls on goods or technology described in
clause (i) or (ii) of subparagraph (A) may be renewed only if,
before each renewal, the President submits to the Congress a
report setting forth all the controls being renewed and stating
the specific reasons for such renewal.
[(7) Notwithstanding any other provision of this
subsection, after 1 year has elapsed since the last review in
the Federal Register on any item within a category on the
control list the export of which to the People's Republic of
China would require only notification of the members of the
group known as the Coordinating Committee, an export license
applicant may file an allegation with the Secretary that such
item has not been so reviewed within such 1-year period. Within
90 days after receipt of such allegation, the Secretary--
[(A) shall determine the truth of the allegation;
[(B) shall, if the allegation is confirmed,
commence and complete the review of the item; and
[(C) shall, pursuant to such review, submit a
finding for publication in the Federal Register.
In such finding, the Secretary shall identify those goods or
technology which shall remain on the control list and those
goods or technology which shall be removed from the control
list. If such review and submission for publication are not
completed within that 90-day period, the goods or technology
encompassed by such item shall immediately be removed from the
control list.
[(d) Militarily Critical Technologies.--(1) The Secretary,
in consultation with the Secretary of Defense, shall review and
revise the list established pursuant to subsection (c), as
prescribed in paragraph (3) of such subsection, for the purpose
of insuring that export controls imposed under this section
cover and (to the maximum extent consistent with the purposes
of this Act) are limited to militarily critical goods and
technologies and the mechanisms through which such goods and
technologies may be effectively transferred.
[(2) The Secretary of Defense shall bear primary
responsibility for developing a list of militarily critical
technologies. In developing such list, primary emphasis shall
be given to--
[(A) arrays of design and manufacturing know-how,
[(B) keystone manufacturing, inspection, and test
equipment,
[(C) goods accompanied by sophisticated operation,
application, or maintenance know-how; and
[(D) keystone equipment with would reveal or give
insight into the design and manufacture of a United
States military system,
which are not possessed by, or available in fact from sources
outside the United States to, controlled countries and which,
if exported, would permit a significant advance in a military
system of any such country.
[(3) The list referred to in paragraph (2) shall be
sufficiently specific to guide the determinations of any
official exercising export licensing responsibilities under
this Act.
[(4) The Secretary and the Secretary of Defense shall
integrate items on the list of militarily critical technologies
into the control list in accordance with the requirements of
subsection (c) of this section. The integration of items on the
list of militarily critical technologies into the control list
shall proceed with all deliberate speed. Any disagreement
between the Secretary and the Secretary of Defense regarding
the integration of an item on the list of militarily critical
technologies into the control list shall be resolved by the
President. Except in the case of a good or technology for which
a validated license may be required under subsection (f)(4) or
(h)(6) of this section, a good or technology shall be included
on the control list only if the Secretary finds that controlled
countries do not possess that good or technology, or a
functionally equivalent good or technology, and the good or
technology or functionally equivalent good or technology, is
not available in fact to a controlled country from sources
outside the United States in sufficient quantity and of
comparable quality so that the requirement of a validated
license for the export of such good or technology is or would
be ineffective in achieving the purpose set forth in subsection
(a) of this section. The Secretary and the Secretary of Defense
shall jointly submit a report to the Congress, not later than 1
year after the date of the enactment of the Export
Administration Amendments Act of 1985, on actions taken to
carry out this paragraph. For the purposes of this paragraph,
assessment of whether a good or technology is functionally
equivalent shall include consideration of the factors described
in subsection (f)(3) of this section.
[(5) The Secretary of Defense shall establish a procedure
for reviewing the goods and technology on the list of
militarily critical technologies on an ongoing basis for the
purpose of removing from the list of militarily critical
technologies any goods or technology that are no longer
militarily critical. The Secretary of Defense may add to the
list of militarily critical technologies and good or technology
that the Secrtary of Defense determines is militarily critical,
consistent with the provisions of paragraph (2) of this
subsection. If the Secretary and the Secretary of Defense
disagree as to whether any change in the list of militarily
critical technologies by the addition or removal of a good or
technology should also be made in the control list, consistent
with the provisions of the fourth sentence of paragraph (4) of
this subsection, the President shall resolve the disagreement.
[(6) The establishment of adequate export controls for
militarily critical technology and keystone equipment shall be
accompanied by suitable reductions in the controls on the
products of that technology and equipment.
[(7) The Secretary of Defense shall, not later than 1 year
after the date of the enactment of the Export Administration
Amendments Act of 1985, report to the Congress on efforts by
the Department of Defense to assess the impact that the
transfer of goods or technology on the list of militarily
critical technologies to controlled countries has had or will
have on the military capabilities of those countries.
[(e) Export Licenses.--(1) The Congress finds that the
effectiveness and efficiency of the process of making export
licensing determinations under this section is severely
hampered by the large volumne of validated export license
applications required to be submitted under this Act.
Accordingly, it is the intent of Congress in this subsection to
encourage the use of the multiple validated export licenses
described in section 4(a)(2) of this Act in lieu of individual
validated licenses.
[(2) To the maximum extent practicable, consistent with the
national security of the United States, the Secretary shall
require a validated license under this section for the export
of goods or technology only if--
[(A) the export of such goods or technology is
restricted pursuant to a multilateral agreement, formal
or informal, to which the United States is a party and,
under the terms of such multilateral agreement, such
export requires the specific approval of the parties to
such multilateral agreement;
[(B) with respect to such goods or technology,
other nations do not possess capabilities comparable to
those possessed by the United States; or
[(C) the United States is seeking the agreement of
other suppliers to apply comparable controls to such
goods or technology and, in the judgment of the
Secretary, United States export controls on such goods
or technology, by means of such license, are necessary
pending the conclusion of such agreement.
[(3) The Secretary, subject to the provisions of subsection
(l) of this section, shall not require an individual validated
export license for replacement parts which are exported to
replace on a one-for-one basis parts that were in a good that
has been lawfully exported from the United States.
[(4) The Secretary shall periodically review the procedures
with respect to the multiple validated export licenses, taking
appropriate action to increase their utilization by reducing
qualification requirements or lowering minimum thresholds, to
combine procedures which overlap, and to eliminate those
procedures which appear to be of marginal utility.
[(5) The export of goods subject to export controls under
this section shall be eligible, at the discretion of the
Secretary, for a distribution license and other licenses
authorizing multiple exports of goods, in accordance with
section 4(a)(2) of this Act. The export of technology and
related goods subject to export controls under this section
shall be eligible for a comprehensive operations license in
accordance with section 4(a)(2)(B) of this Act.
[(6) Any application for a license for the export to the
People's Republic of China of any good on which export controls
are in effect under this section, without regard to the
technical specifications of the good, for the purpose of
demonstration or exhibition at a trade show shall carry a
presumption of approval if--
[(A) the United States exporter retains title to
the good during the entire period in which the good is
in the People's Republic of China; and
[(B) the exporter removes the good from the
People's Republic of China no later than at the
conclusion of the trade show.
[(f) Foreign Availability.--
[(1) Foreign availability to controlled
countries.--(A) The Secretary, in consultation with the
Secretary of Defense and other appropriate Government
agencies and with appropriate technical advisory
committees established pursuant to subsection (h) of
this section, shall review, on a continuing basis, the
availability to controlled countries, from sources
outside the United States, including countries which
participate with the United States in multilateral
export controls, of any goods or technology the export
of which requires a validated license under this
section. In any case in which the Secretary determines,
in accordance with procedures and criteria which the
Secretary shall by regulation establish, that any such
goods or technology are available in fact to controlled
countries from such sources in sufficient quantity and
of comparable quality so that the requirement of a
validated license for the export of such goods or
technology is or would be ineffective in achieving the
purpose set forth in subsection (a) of this section,
the Secretary may not, after the determination is made,
require a validated license for the export of such
goods or technology during the period of such foreign
availability, unless the President determines that the
absence of export controls under this section on the
goods or technology would prove detrimental to the
national security of the United States. In any case in
which the President determines under this paragraph
that export controls under this section must be
maintained notwithstanding foreign availability, the
Secretary shall publish that determination, together
with a concise statement of its basis and the estimated
economic impact of the decision.
[(B) The Secretary shall approve any application
for a validated license which is required under this
section for the export of any goods or technology to a
controlled country and which meets all other
requirements for such an application, if the Secretary
determines that such goods or technology will, if the
license is denied, be available in fact to such country
from sources outside the United States, including
countries which participate with the United States in
multilateral export controls, in sufficient quantity
and of comparable quality so that denial of the license
would be ineffective in achieving the purpose set forth
in subsection (a) of this section, unless the President
determines that approving the license application would
prove detrimental to the national security of the
United States. In any case in which the Secretary makes
a determination of foreign availability under this
subparagraph with respect to any goods or technology,
the Secretary shall determine whether a determination
of foreign availability under subparagraph (A) with
respect to such goods or technology is warranted.
[(2) Foreign availability to other than controlled
countries.--(A) The Secretary shall review, on a
continuing basis, the availability to countries other
than controlled countries, from sources outside the
United States, of any goods or technology the export of
which requires a validated license under this section.
If the Secretary determines, in accordance with
procedures which the Secretary shall establish, that
any goods or technology in sufficient quantity and of
comparable quality are available in fact from sources
outside the United States (other than availability
under license from a country which maintains export
controls on such goods or technology cooperatively with
the United States pursuant to the agreement of the
group known as the Coordinating Committee or pursuant
to an agreement described in subsection (k) of this
section), the Secretary may not, after the
determination is made and during the period of such
foreign availability, require a validated license for
the export of such goods or technology to any country
(other than a controlled country) to which the country
from which the goods or technology is available does
not place controls on the export of such goods or
technology. The requirement with respect to a validated
license in the preceding sentence shall not apply if
the President determines that the absence of export
controls under this section on the goods or technology
would prove detrimental to the national security of the
United States. In any case in which the President
determines under this paragraph that export controls
under this section must be maintained notwithstanding
foreign availability, the Secretary shall publish that
determination, together with a concise statement of its
basis and the estimated economic impact of the
decision.
[(B) The Secretary shall approve any application
for a validated license which is required under this
section for the export of any goods or technology to a
country (other than a controlled country) and which
meets all other requirements for such an application,
if the Secretary determines that such goods or
technology are available from foreign sources to that
country under the criteria established in subparagraph
(A), unless the President determines that approving the
license application would prove detrimental to the
national security of the United States. In any case in
which the Secretary makes a determination of foreign
availability under this subparagraph with respect to
any goods or technology, the Secretary shall determine
whether a determination of foreign availability under
subparagraph (A) with respect to such goods or
technology is warranted.
[(3) Procedures for making determinations.--(A) The
Secretary shall make a foreign availability
determination under paragraph (1) or (2) on the
Secretary's own initiative or upon receipt of an
allegation from an export license applicant that such
availability exists. In making any such determination,
the Secretary shall accept the representations of
applicants made in writing and supported by reasonable
evidence, unless such representations are contradicted
by reliable evidence, including scientific or physical
examination, expert opinion based upon adequate factual
information, or intelligence information. In making
determinations of foreign availability, the Secretary
may consider such factors as cost, reliability, the
availability and reliability of spare parts and the
cost and quality thereof, maintenance programs,
durability, quality of end products produced by the
item proposed for export, and scale of production. For
purposes of this subparagraph, ``evidence'' may include
such items as foreign manufacturers' catalogues,
brochures, or operations or maintenance manuals,
articles from reputable trade publications,
photographs, and depositions based upon eyewitness
accounts.
[(B) In a case in which an allegation is received
from an export license applicant, the Secretary shall,
upon receipt of the allegation, submit for publication
in the Federal Register notice of such receipt. Within
4 months after receipt of the allegation, the Secretary
shall determine whether the foreign availability
exists, and shall so notify the applicant. If the
Secretary has determined that the foreign availability
exists, the Secretary shall, upon making such
determination, submit the determination for review to
other departments and agencies as the Secretary
considers appropriate. The Secretary's determination of
foreign availability does not require the concurrence
or approval of any official, department, or agency to
which such a determination is submitted. Not later than
1 month after the Secretary makes the determination,
the Secretary shall respond in writing to the applicant
and submit for publication in the Federal Register,
that--
[(i) the foreign availability does exist
and--
[(I) the requirement of a validated
license has been removed,
[(II) the President has determined
that export controls under this section
must be maintained notwithstanding the
foreign availability and the applicable
steps are being taken under paragraph
(4), or
[(III) in the case of a foreign
availability determination under
paragraph (1), the foreign availability
determination will be submitted to a
multilateral review process in
accordance with the agreement of the
Coordinating Committee for a period of
not more than 4 months beginning on the
date of the publication; or
[(ii) the foreign availability does not
exist.
In any case in which the submission for publication is
not made within the time period specified in the
preceding sentence, the Secretary may not thereafter
require a license for the export of the goods or
technology with respect to which the foreign
availability allegation was made. In the case of a
foreign availability determination under paragraph (1)
to which clause (i)(III) applies, no license for such
export may be required after the end of the 9-month
period beginning on the date on which the allegation is
received.
[(4) Negotiations to eliminate foreign
availability.--(A) In any case in which export controls
are maintained under this section notwithstanding
foreign availability, on account of a determination by
the President that the absence of the controls would
prove detrimental to the national security of the
United States, the President shall actively pursue
negotiations with the governments of the appropriate
foreign countries for the purpose of eliminating such
availability. No later than the commencement of such
negotiations, the President shall notify in writing the
Committee on Banking, Housing, and Urban Affairs of the
Senate and the Committee on Foreign Affairs of the
House of Representatives that he has begun such
negotiations and why he believes it is important to
national security that export controls on the goods or
technology involved be maintained.
[(B) If, within 6 months after the President's
determination that export controls be maintained, the
foreign availability has not been eliminated, the
Secretary may not, after the end of that 6-month
period, require a validated license for the export of
the goods or technology involved. The President may
extend the 6-month period described in the preceding
sentence for an additional period of 12 months if the
President certifies to the Congress that the
negotiations involved are progressing and that the
absence of the export controls involved would prove
detrimental to the national security of the United
States. Whenever the President has reason to believe
that goods or technology subject to export controls for
national security purposes by the United States may
become available from other countries to controlled
countries and that such availability can be prevented
or eliminated by means of negotiations with such other
countries, the President shall promptly initiate
negotiations with the governments of such other
countries to prevent such foreign availability.
[(C) After an agreement is reached with a country
pursuant to negotiations under this paragraph to
eliminate or prevent foreign availability of goods or
technology, the Secretary may not require a validated
license for the export of such goods or technology to
that country.
[(5) Expedited licenses for items available to
countries other than controlled countries.--(A) In any
case in which the Secretary finds that any goods or
technology from foreign sources is of similar quality
to goods or technology the export of which requires a
validated license under this section and is available
to a country other than a controlled country without
effective restrictions, the Secretary shall designate
such goods or technology as eligible for export to such
country under this paragraph.
[(B) In the case of goods or technology designated
under subparagraph (A), then 20 working days after the
date of formal filing with the Secretary of an
individual validated license application for the export
of those goods or technology to an eligible country, a
license for the transaction specified in the
application shall become valid and effective and the
goods or technology are authorized for export pursuant
to such license unless the license has been denied by
the Secretary on account of an inappropriate end user.
The Secretary may extend the 20-day period provided in
the preceding sentence for an additional period of 15
days if the Secretary requires additional time to
consider the application and so notifies the applicant.
[(C) The Secretary may make a foreign availability
determination under subparagraph (A) on the Secretary's
own initiative, upon receipt of an allegation from an
export license applicant that such availability exists,
or upon the submission of a certification by a
technical advisory committee of appropriate
jurisdiction that such availability exists. Upon
receipt of such an allegation or certification, the
Secretary shall publish notice of such allegation or
certification in the Federal Register and shall make
the foreign availability determination within 30 days
after such receipt and publish the determination in the
Federal Register. In the case of the failure of the
Secretary to make and publish such determination within
that 30-day period, the goods or technology involved
shall be deemed to be designated as eligible for export
to the country or countries involved, for purposes of
subparagraph (B).
[(D) The provisions of paragraphs (1), (2), (3),
and (4) do not apply with respect to determinations of
foreign availability under this paragraph.
[(6) Office of foreign availability.--The Secretary
shall establish in the Department of Commerce an Office
of Foreign Availability, which shall be under the
direction of the Under Secretary of Commerce for Export
Administration. The Office shall be responsible for
gathering and analyzing all the necessary information
in order for the Secretary to make determinations of
foreign availability under this Act. The Secretary
shall make available to the Committee on Foreign
Affairs of the House of Representatives and the
Committee on Banking, Housing, and Urban Affairs of the
Senate at the end of each 6-month period during a
fiscal year information on the operations of the
Office, and on improvements in the Government's ability
to assess foreign availability, during that 6-month
period, including information on the training of
personnel, the use of computers, and the use of
Commercial Service Officers of the United States and
Foreign Commercial Service. Such information shall also
include a description of representative determinations
made under this Act during that 6-month period that
foreign availability did or did not exist (as the case
may be), together with an explanation of such
determinations.
[(7) 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 Office of
Foreign Availability concerning foreign availability of
goods and technology subject to export controls under
this Act. Each such department or agency shall allow
the Office of Foreign Availability access to any
information from a laboratory or other facility within
such department or agency.
[(8) Removal of controls on less sophisticated
goods or technology.--In any case in which Secretary
may not, pursuant to paragraph (1), (2), (3), or (4) of
this subsection or paragraph (6) of subsection (h) of
this section, require a validated license for the
export of goods or technology, then the Secretary may
not require a validated license for the export of any
similar goods or technology whose function,
technological approach, performance thresholds, and
other attributes that form the basis for export
controls under this section do not exceed the technical
parameters of the goods or technology from which the
validated license requirement is removed under the
applicable paragraph.
[(9) Notice of all foreign availability
assessments.--Whenever the Secretary undertakes a
foreign availability assessment under this subsection
or subsection (h)(6), the Secretary shall publish
notice of such assessment in the Federal Register.
[(10) Availability defined.--For purposes of this
subsection and subsections (f) and (h), the term
``available in fact to controlled countries'' includes
production or availability of any goods or technology
in any country--
[(A) from which the goods or technology 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
goods or technology on a list of goods or technology
subject to bilateral or multilateral national security
export controls shall not alone constitute credible
evidence that a country provides an effective means of
controlling the export of such goods or technology to
controlled countries.
[(g) Indexing.--(1) In order to ensure that requirements
for validated licenses and other licenses authorizing multiple
exports are periodically removed as goods or technology subject
to such requirements becomes obsolete with respect to the
national security of the United States, regulations issued by
the Secretary may, where appropriate, provide for annual
increases in the performance levels of goods or technology
subject to any such licensing requirement. The regulations
issued by the Secretary shall establish as one criterion for
the removal of goods or technology from such license
requirements the anticipated needs of the military of
controlled countries. Any such goods or technology which no
longer meets the performance levels established by the
regulations shall be removed from the list established pursuant
to subsection (c) of this section unless, under such exceptions
and under such procedures as the Secretary shall prescribe, any
other department or agency of the United States objects to such
removal and the Secretary determines, on the basis of such
objection, that the goods or technology shall not be removed
from the list. The Secretary shall also consider, where
appropriate, removing site visitation requirements for goods
and technology which are removed from the list unless
objections described in this subsection are raised.
[(2)(A) In carrying out this subsection, the Secretary
shall conduct annual reviews of the performance levels of goods
or technology--
[(i) which are eligible for export under a
distribution license,
[(ii) below which exports to the People's Republic
of China require only notification of the governments
participating in the group known as the Coordinating
Committee, and
[(iii) below which no authority or permission to
export may be required under subsection (b)(2) or
(b)(3) of this section.
The Secretary shall make appropriate adjustments to such
performance levels based on these reviews.
[(B) In any case in which the Secretary receives a request
which--
[(i) is to revise the qualification requirements or
minimum thresholds of any goods eligible for export
under a distribution license, and
[(ii) is made by an exporter of such goods,
representatives of an industry which produces such
goods, or a technical advisory committee established
under subsection (h) of this section,
the Secretary, after consulting with other appropriate
Government agencies and technical advisory committees
established under subsection (h) of this section, shall
determine whether to make such revision, or some other
appropriate revision, in such qualification requirements or
minimum thresholds. In making this determination, the Secretary
shall take into account the availability of the goods from
sources outside the United States. The Secretary shall make a
determination on a request made under this subparagraph within
90 days after the date on which the request is filed. If the
Secretary's determination pursuant to such a request is to make
a revision, such revision shall be implemented within 120 days
after the date on which the request is filed and shall be
published in the Federal Register.
[(h) Technical Advisory Committees.--(1) Upon written
request by representatives of a substantial segment of any
industry which produces any goods or technology subject to
export controls under this section or being considered for such
controls because of their significance to the national security
of the United States, the Secretary shall appoint a technical
advisory committee for any such goods or technology which the
Secretary determines are difficult to evaluate because of
questions concerning technical matters, worldwide availability,
and actual utilization of production and technology, or
licensing procedures. Each such committee shall consist of
representatives of United States industry and Government,
including the Departments of Commerce, Defense, and State, the
intelligence community, and, in the discretion of the
Secretary, other Government departments and agencies. No person
serving on any such committee who is a representative of
industry shall serve on such committee for more than four
consecutive years.
[(2) Technical advisory committees established under
paragraph (1) shall advise and assist the Secretary, the
Secretary of Defense, and any other department, agency, or
official of the Government of the United States to which the
President delegates authority under this Act, with respect to
actions designed to carry out the policy set forth in section
3(2)(A) of this Act. Such committees, where they have expertise
in such matters, shall be consulted with respect to 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 goods or technology, (D) revisions of the control list
(as provided in subsection (c)(4)), including proposed
revisions of multilateral controls in which the United States
participates, (E) the issuance of regulations, and (F) any
other questions relating to actions designed to carry out the
policy set forth in section 3(2)(A) of this Act. Nothing in
this subsection shall prevent the Secretary or the Secretary of
Defense from consulting, at any time, with any person
representing industry or the general public, regardless of
whether such person is a member of a technical 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) Upon request of any member of any such committee, the
Secretary may, if the Secretary determines it appropriate,
reimburse such member for travel, subsistence, and other
necessary expenses incurred by such member in connection with
the duties of such member.
[(4) Each such committee shall elect a chairman, and shall
meet at least every three months at the call of the chairman,
unless the chairman 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. The
Secretary shall consult each such committee with respect to
such termination or extension of that committee.
[(5) To facilitate the work of the technical advisory
committees, the Secretary, in conjunction with other
departments and agencies participating in the administration of
this Act, 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 goods or technology with respect to which
that committee furnishes advice.
[(6) Whenever a technical advisory committee certifies to
the Secretary that goods or technology with respect to which
such committee was appointed have become available in fact, to
controlled countries, from sources outside the United States,
including countries which participate with the United States in
multilateral export controls, in sufficient quantity and of
comparable quality so that requiring a validated license for
the export of such goods or technology would be ineffective in
achieving the purpose set forth in subsection (a) of this
section, the technical advisory committee shall submit that
certification to the Congress at the same time the
certification is made to the Secretary, together with the
documentation for the certification. The Secretary shall
investigate the foreign availability so certified and, not
later than 90 days after the certification is made, shall
submit a report to the technical advisory committee and the
Congress stating that--
[(A) the Secretary has removed the requirement of a
validated license for the export of the goods or
technology, on account of the foreign availability,
[(B) the Secretary has recommended to the President
that negotiations be conducted to eliminate the foreign
availability, or
[(C) the Secretary has determined on the basis of
the investigation that the foreign availability does
not exist.
To the extent necessary, the report may be submitted on a
classified basis. In any case in which the Secretary has
recommended to the President that negotiations be conducted to
eliminate the foreign availability, the President shall
actively pursue such negotiations with the governments of the
appropriate foreign countries. If, within 6 months after the
Secretary submits such report to the Congress, the foreign
availability has not been eliminated, the Secretary may not,
after the end of that 6-month period, require a validated
license for the export of the goods or technology involved. The
President may extend the 6-month period described in the
preceding sentence for an additional period of 12 months if the
President certifies to the Congress that the negotiations
involved are progressing and that the absence of the export
control involved would prove detrimental to the national
security of the United States. After an agreement is reached
with a country pursuant to negotiations under this paragraph to
eliminate foreign availability of goods or technology, the
Secretary may not require a validated license for the export of
such goods or technology to that country.
[(i) Multilateral Export Controls.--Recognizing the
ineffectiveness of unilateral controls and the importance of
uniform enforcement measures to the effectiveness of
multilateral controls, the President shall enter into
negotiations with the governments participating in the group
known as the Coordinating Committee (hereinafter in this
subsection referred to as the ``Committee'') with a view toward
accomplishing the following objectives:
[(1) Enhanced public understanding of the
Committee's purpose and procedures, including
publication of the list of items controlled for export
by agreement of the Committee, together with all notes,
understandings, and other aspects of such agreement of
the Committee, and all changes thereto.
[(2) Periodic meetings of high-level
representatives of participating governments for the
purpose of coordinating export control policies and
issuing policy guidance to the Committee.
[(3) Strengthened legal basis for each government's
export control system, including, as appropriate,
increased penalties and statutes of limitations.
[(4) Harmonization of export control documentation
by the participating governments to verify the movement
of goods and technology subject to controls by the
Committee.
[(5) Improved procedures for coordination and
exchange of information concerning violations of the
agreement of the Committee.
[(6) Procedures for effective implementation of the
agreement through uniform and consistent
interpretations of export controls agreed to by the
governments participating in the Committee.
[(7) Coordination of national licensing and
enforcement efforts by governments participating in the
Committee, including sufficient technical expertise to
assess the licensing status of exports and to ensure
end-use verification.
[(8) More effective procedures for enforcing export
controls, including adequate training, resources, and
authority for enforcement officers to investigate and
prevent illegal exports.
[(9) Agreement to provide adequate resources to
enhance the functioning of individual national export
control systems and of the Committee.
[(10) Improved enforcement and compliance with the
agreement through elimination of unnecessary export
controls and maintenance of an effective control list.
[(11) Agreement to enhance cooperation among
members of the Committee in obtaining the agreement of
governments outside the Committee to restrict the
export of goods and technology on the International
Control List, to establish an ongoing mechanism in the
Committee to coordinate planning and implementation of
export control measures related to such agreements, and
to remove items from the International Control List if
such items continue to be available to controlled
countries or if the control of the items no longer
serves the common strategic objectives of the members
of the Committee.
For purposes of reviews of the International Control List, the
President may include as advisors of the United States
delegation to the Committee representatives of industry who are
knowledgeable with respect to the items being reviewed.
[(j) Commercial Agreements With Certain Countries.--(1) Any
United States firm, enterprise, or other nongovernmental entity
which enters into an agreement with any agency of the
government of a controlled country, that calls for the
encouragement of technical cooperation and that is intended to
result in the export from the United States to the other party
of unpublished technical data of United States origin, shall
report to the Secretary the agreement with such agency in
sufficient detail.
[(2) The provisions of paragraph (1) shall not apply to
colleges, universities, or other educational institutions.
[(k) Negotiations With Other Countries.--The Secretary of
State in consultation with the Secretary of Defense, the
Secretary of Commerce, and the heads of other appropriate
departments and agencies, shall be responsible for conducting
negotiations with other countries, including those countries
not participating in the group known as the Coordinating
Committee, regarding their cooperation in restricting the
export of goods and technology in order to carry out the policy
set forth in section 3(9) of this Act, as authorized by
subsection (a) of this section, including negotiations with
respect to which goods and technology should be subject to
multilaterally agreed export restrictions and what conditions
should apply for exceptions from those restrictions. In cases
where such negotiations produce agreements on export
restrictions comparable in practice to those maintained by the
Coordinating Committee, the Secretary shall treat exports,
whether by individual or multiple licenses, to countries party
to such agreements in the same manner as exports to members of
the Coordinating Committee are treated, including the same
manner as exports are treated under subsection (b)(2) of this
section and section 10(o) of this Act.
[(l) Diversion of Controlled Goods or Technology.--(1)
Whenever there is reliable evidence, as determined by the
Secretary, that goods or technology which were exported subject
to national security controls under this section to a
controlled country have been diverted to an unauthorized use or
consignee in violation of the conditions of an export license,
the Secretary for as long as that diversion continues--
[(A) shall deny all further exports, to or by the
party or parties responsible for that diversion or who
conspired in that diversion, of any goods or technology
subject to national security controls under this
section, regardless of whether such goods or technology
are available from sources outside the United States;
and
[(B) may take such additional actions under this
Act with respect to the party or parties referred to in
subparagraph (A) as the Secretary determines are
appropriate in the circumstances to deter the further
unauthorized use of the previously exported goods or
technology.
[(2) As used in this subsection, the term ``unauthorized
use'' means the use of United States goods or technology in the
design, production, or maintenance of any item on the United
States Munitions List, or the military use of any item on the
International Control List of the Coordinating Committee.
[(m) Goods Containing Controlled Parts and Components.--
Export controls may not be imposed under this section, or under
any other provision of law, on a good solely on the basis that
the good contains parts or components subject to export
controls under this section if such parts or components--
[(1) are essential to the functioning of the good,
[(2) are customarily included in sales of the good
in countries other than controlled countries, and
[(3) comprise 25 percent or less of the total value
of the good,
unless the good itself, if exported, would by virtue of the
functional characteristics of the good as a whole make a
significant contribution to the military potential of a
controlled country which would prove detrimental to the
national security of the United States.
[(n) Security Measures.--The Secretary and the Commissioner
of Customs, consistent with their authorities under section
12(a) of this Act, and in consultation with the Director of the
Federal Bureau of Investigation, shall provide advice and
technical assistance to persons engaged in the manufacture or
handling of goods or technology subject to export controls
under this section to develop security systems to prevent
violations or evasions of those export controls.
[(o) Recordkeeping.--The Secretary, the Secretary of
Defense, and any other department or agency consulted in
connection with a license application under this Act or a
revision of a list of goods or technology subject to export
controls under this Act, shall make and keep records of their
respective advice, recommendations, or decisions in connection
with any such license application or revision, including the
factual and analytical basis of the advice, recommendations, or
decisions.
[(p) National Security Control Office.--To assist in
carrying out the policy and other authorities and
responsibilities of the Secretary of Defense under this
section, there is established in the Department of Defense a
National Security Control Office under the direction of the
Under Secretary of Defense Policy. The Secretary of Defense may
delegate to that office such of those authorities and
responsibilities, together with such ancillary functions, as
the Secretary of Defense considers appropriate.
[(q) Exclusion for Agricultural Commodities.--This section
does not authorize export controls on agricultural commodities,
including fats, oils, and animal hides and skins.
[foreign policy controls
[Sec. 6. (a) Authority.--(1) In order to carry out the
policy set forth in paragraph (2)(B), (7), (8), or (13) of
section 3 of this Act, the President may prohibit or curtail
the exportation of any goods, 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, to
the extent necessary to further significantly the foreign
policy of the United States or to fulfill its declared
international obligations. The authority granted by this
subsection shall be exercised by the Secretary, in consultation
with the Secretary of State, the Secretary of Defense, the
Secretary of Agriculture, the Secretary of the Treasury, the
United States Trade Representative, and such other departments
and agencies as the Secretary considers appropriate, and shall
be implemented by means of export licenses issued by the
Secretary.
[(2) Any export control imposed under this section shall
apply to any transaction or activity undertaken with the intent
to evade that export control, even if that export control would
not otherwise apply to that transaction or activity.
[(3) Export controls maintained for foreign policy purposes
shall expire on December 31, 1979, or one year after
imposition, whichever is later, unless extended by the
President in accordance with subsections (b) and (f). Any such
extension and any subsequent extension shall not be for a
period of more than a year.
[(4) Whenever the Secretary denies any export license under
this subsection, the Secretary shall specify in the notice to
the applicant of the denial of such license that the license
was denied under the authority contained in this subsection,
and the reasons for such denial, with reference to the criteria
set forth in subsection (b) of this section. The Secretary
shall also include in such notice what, if any, modifications
in or restrictions on the goods or technology for which the
license was sought would allow such export to be compatible
with controls implemented under this section, or the Secretary
shall indicate in such notice which officers and employees of
the Department of Commerce who are familiar with the
application will be made reasonably available to the applicant
for consultation with regard to such modifications or
restrictions, if appropriate.
[(5) In accordance with the provisions of section 10 of
this Act, the Secretary of State shall have the right to review
any export license application under this section which the
Secretary of State requests to review.
[(6) Before imposing, expanding, or extending export
controls under this section on exports to a country which can
use goods, technology, or information available from foreign
sources and so incur little or no economic costs as a result of
the controls, the President should, through diplomatic means,
employ alternatives to export controls which offer
opportunities of distinguishing the United States from, and
expressing the displeasure of the United States with, the
specific actions of that country in response to which the
controls are proposed. Such alternatives include private
discussions with foreign leaders, public statements in
situations where private diplomacy is unavailable or not
effective, withdrawal of ambassadors, and reduction of the size
of the diplomatic staff that the country involved is permitted
to have in the United States.
[(b) Criteria.--(1) Subject to paragraph (2) of this
subsection, the President may impose, extend, or expand export
controls under this section only if the President determines
that--
[(A) such controls are likely to achieve the
intended foreign policy purpose, in light of other
factors, including the availability from other
countries of the goods or technology proposed for such
controls, and that foreign policy purpose cannot be
achieved through negotiations or other alternative
means;
[(B) 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 exports are to be subject to the proposed
controls;
[(C) the reaction of other countries to the
imposition, extension, or expansion of such export
controls by the United States is not likely to render
the controls ineffective in achieving the intended
foreign policy purpose or to be counterproductive to
United States foreign policy interests;
[(D) the effect of the proposed controls on the
export performance of the United States, the
competitive position of the United States in the
international economy, the international reputation of
the United States as a supplier of goods and
technology, or on the economic well-being of individual
United States companies and their employees and
communities does not exceed the benefit to United
States foreign policy objectives; and
[(E) the United States has the ability to enforce
the proposed controls effectively.
[(2) With respect to those export controls in effect under
this section on the date of the enactment of the Export
Administration Amendments Act of 1985, the President, in
determining whether to extend those controls, as required by
subsection (a)(3) of this section, shall consider the criteria
set forth in paragraph (1) of this subsection and shall
consider the foreign policy consequences of modifying the
export controls.
[(c) Consultation With Industry.--The Secretary in every
possible instance shall consult with and seek advice from
affected United States industries and appropriate advisory
committees established under section 135 of the Trade Act of
1974 before imposing any export control under this section.
Such consultation and advice shall be with respect to the
criteria set forth in subsection (b)(1) and such other matters
as the Secretary considers appropriate.
[(d) Consultation With Other Countries.--When imposing
export controls under this section, the President shall, at the
earliest appropriate opportunity, consult with the countries
with which the United States maintains export controls
cooperatively, and with such other countries as the President
considers appropriate, with respect to the criteria set forth
in subsection (b)(1) and such other matters as the President
considers appropriate.
[(e) Alternative Means.--Before resorting to the imposition
of export controls under this section, the President shall
determine that reasonable efforts have been made to achieve the
purposes of the controls through negotiations or other
alternative means.
[(f) Consultation With the Congress.--(1) The president may
impose or expand export controls under this section, or extend
such controls as required by subsection (a)(3) of this section,
only after consultation with the Congress, including the
Committee on Foreign Affairs of the House of Representatives
and the Committee on Banking, Housing, and Urban Affairs of the
Senate.
[(2) The President may not impose, expand, or extend export
controls under this section until the President has submitted
to the Congress a report--
[(A) specifying the purpose of the controls;
[(B) specifying the determinations of the President
(or, in the case of those export controls described in
subsection (b)(2), the considerations of the President)
with respect to each of the criteria set forth in
subsection (b)(1), the bases for such determinations
(or considerations), and any possible adverse foreign
policy consequences of the controls;
[(C) describing the nature, the subjects, and the
results of, or the plans for, the consultation with
industry pursuant to subsection (c) and with other
countries pursuant to subsection (d);
[(D) specifying the nature and results of any
alternative means attempted under subsection (e), or
the reasons for imposing, expanding, or extending the
controls without attempting any such alternative means;
and
[(E) describing the availability from other
countries of goods or technology comparable to the
goods or technology subject to the proposed export
controls, and describing the nature and results of the
efforts made pursuant to subsection (h) to secure the
cooperation of foreign governments in controlling the
foreign availability of such comparable goods or
technology.
Such report shall also indicate how such controls will further
significantly the foreign policy of the United States or will
further its declared international obligations.
[(3) To the extent necessary to further the effectiveness
of the export controls portions of a report required by
paragraph (2) may be submitted to the Congress on a classified
basis, and shall be subject to the provisions of section 12(c)
of this Act.
[(4) In the case of export controls under this section
which prohibit or curtail the export of any agricultural
commodity, a report submitted pursuant to paragraph (2) shall
be deemed to be the report required by section 7(g)(3)(A) of
this Act.
[(5) In addition to any written report required, under this
section, the Secretary, not less frequently than annually,
shall present in oral testimony before the Committee on
Banking, Housing, and Urban Affairs of the Senate and the
Committe on Foreign Affairs of the House of Representatives a
report on policies and actions taken by the Government to carry
out the provisions of this section.
[(g) Exclusion for Medicine and Medical Supplies and for
Certain Food Exports.--This section does not authorize export
controls on medicine or medical supplies. This section also
does not authorize export controls on donations of goods
(including, but not limited to, food, educational materials,
seeds and hand tools, medicines and medical supplies, water
resources equipment, clothing and shelter materials, and basic
household supplies) that are intended to meet basic human
needs. Before export controls on food are imposed, expanded, or
extended under this section, the Secretary shall notify the
Secretary of State in the case of export controls applicable
with respect to any developed country and shall notify the
Administrator of the Agency for International Development in
the case of export controls applicable with respect to any
developing country. The Secretary of State with respect to
developed countries, and the Administrator with respect to
developing countries, shall determine whether the proposed
export control on food would cause measurable malnutrition and
shall inform the Secretary of that determination. If the
Secretary is informed that the proposed export controls on food
would cause measurable malnutrition, then those controls may
not be imposed, expanded, or extended, as the case may be,
unless the President determines that those controls are
necessary to protect the national security interest of the
United States, or unless the President determines that
arrangements are insufficient to ensure that the food will
reach those most in need. Each such determination by the
Secretary of State or the Administrator of the Agency for
International Development, and any such determination by the
President, shall be reported to the Congress, together with a
statement of the reasons for that determination. It is the
intent of Congress that the President not impose export
controls under this section on any goods or technology if he
determines that the principal effect of the export of such
goods or technology would be to help meet basic human needs.
The subsection shall not be construed to prohibit the President
from imposing restrictions on the export of medicine or medical
supplies or of food under the International Emergency Economic
Powers Act. This subsection shall not apply to any export
control on medicine, medical supplies, or food, except for
donations, which is in effect on the date of the enactment of
the Export Administration Amendments Act of 1985.
Notwithstanding the proceding provisions of this subsection,
the President may impose export controls under this section on
medicine, medical supplies, food, and donations of goods in
order to carry out the policy set forth in paragraph (13) of
section 3 of this Act.
[(h) Foreign Availability.--(1) In applying export controls
under this section, the President shall take all feasible steps
to initiate and conclude negotiations with appropriate foreign
governments for the purpose of securing the cooperation of such
foreign governments in controlling the export to countries and
consigness to which the United States export controls apply of
any goods or technology comparable to goods or technology
controlled under this section.
[(2) Before extending any export control pursuant to
subsection (a)(3) of this section, the President shall evaluate
the results of his actions under paragraph (1) of this
subsection and shall include the results of that evaluation in
his report to the Congress pursuant to subsection (f) of this
section.
[(3) If, within 6 months after the date on which export
controls under this section are imposed or expanded, or within
6 months after the date of the enactment of the Export
Administration Amendments Act of 1985 in the case of export
controls in effect on such date of enactment, the President's
efforts under paragraph (1) are not successful in securing the
cooperation of foreign governments described in paragraph (1)
with respect to those export controls, the Secretary shall
thereafter take into account the foreign availability of the
goods or technology subject to the export controls. If the
Secretary affirmatively determines that a good or technology
subject to the export controls is available in sufficient
quantity and comparable quality from sources outside the United
States to countries subject to the export controls so that
denial of an export license would be ineffective in achieving
purposes of the controls, then the Secretary shall, during the
period of such foreign availability, approve any license
application which is required for the export of the good or
technology and which meets all requirements for such a license.
The Secretary shall remove the good or technology from the list
established pursuant to subsection (1) of this section if the
Secretary determines that such action is appropriate.
[(4) In making a determination of foreign availability
under paragraph (3) of this subsection, the Secretary shall
follow the procedures set forth in section 5(f)(3) of this Act.
[(i) International Obligations.--The provisions of
subsections (b), (c), (d), (e), (g), and (h) shall not apply in
any case in which the President exercises the authority
contained in this section to impose export controls, or to
approve or deny export license applications, in order to
fulfill obligations of the United States pursuant to treaties
to which the United States is a party or pursuant to other
international agreements.
[(j) Countries Supporting International Terrorism.--(1) A
validated license shall be required for the export of goods or
technology to a country if the Secretary of State has made the
following determinations:
[(A) The government of such country has repeatedly
provided support for acts of international terrorism.
[(B) The export of such goods or technology could
make a significant contribution to the military
potential of such country, including its military
logistics capability, or could enhance the ability of
such country to support acts of international
terrorism.
[(2) The Secretary and the Secretary of State shall notify
the Committee on Foreign Affairs 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 validated license
required by paragraph (1).
[(3) Each determination of the Secretary of State under
paragraph (1)(A), including each determination in effect on the
date of the enactment of the Antiterrorism and Arms Export
Amendments Act of 1989, shall be published in the Federal
Register.
[(4) 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) The Secretary and the Secretary of State shall
include in the notification required by paragraph (2)--
[(A) a detailed description of the goods or
services to be offered, including a brief
description of the capabilities of any article
for which a license to export is sought;
[(B) the reasons why the foreign country or
international organization to which the export
or transfer is proposed to be made needs the
goods or services which are the subject of such
export or transfer and a description of the
manner in which such country or organization
intends to use such articles, services, or
design and construction services;
[(C) the reasons why the proposed export or
transfer is in the national interest of the
United States;
[(D) an analysis of the impact of the
proposed export or transfer on the military
capabilities of the foreign country or
international organization to which such export
or transfer would be made;
[(E) an analysis of the manner in which the
proposed export would affect the relative
military strengths of countries in the region
to which the goods or services which are the
subject of such export would be delivered and
whether other countries in the region have
comparable kinds and amounts of articles,
services, or design and construction services;
and
[(F) an analysis of the impact of the
proposed export or transfer on the United
States relations with the countries in the
region to which the goods or services which are
the subject of such export would be delivered.
[(k) Negotiations With Other Countries.--
[(1) Countries participating in certain
agreements.--The Secretary of State, in consultation
with the Secretary, the Secretary of Defense, and the
heads of other appropriate departments and agencies,
shall be responsible for conducting negotiations with
those countries participating in the groups known as
the Coordinating Committee, the Missile Technology
Control Regime, the Australia Group, and the Nuclear
Suppliers' Group, regarding their cooperation in
restricting the export of goods and technology in order
to carry out--
[(A) the policy set forth in section
3(2)(B) of this Act, and
[(B) United States policy opposing the
proliferation of chemical, biological, nuclear,
and other weapons and their delivery systems,
and effectively restricting the export of dual
use components of such weapons and their
delivery systems, in accordance with this
subsection and subsections (a) and (l).
Such negotiations shall cover, among other issues,
which goods and technology should be subject to
multilaterally agreed export restrictions, and the
implementation of the restrictions consistent with the
principles identified in section 5(b)(2)(C) of this
Act.
[(2) Other countries.--The Secretary of State, in
consultation with the Secretary, the Secretary of
Defense, and the heads of other appropriate departments
and agencies, shall be responsible for conducting
negotiations with countries and groups of countries not
referred to in paragraph (1) regarding their
cooperation in restricting the export of goods and
technology consistent with purposes set forth in
paragraph (1). In cases where such negotiations produce
agreements on export restrictions that the Secretary,
in consultation with the Secretary of State and the
Secretary of Defense, determines to be consistent with
the principles identified in section 5(b)(2)(C) of this
Act, the Secretary may treat exports, whether by
individual or multiple licenses, to countries party to
such agreements in the same manner as exports are
treated to countries that are MTCR adherents.
[(3) Review of determinations.--The Secretary shall
annually review any determination under paragraph (2)
with respect to a country. For each such country which
the Secretary determines is not meeting the
requirements of an effective export control system in
accordance with section 5(a)(4)(D), the Secretary shall
restrict or eliminate any preferential licensing
treatment for exports to that country provided under
this subsection.
[(l) Missile Technology.--
[(1) Determination of controlled items.--The
Secretary, in consultation with the Secretary of State,
the Secretary of Defense, and the heads of other
appropriate departments and agencies--
[(A) shall establish and maintain, as part
of the control list established under this
section, a list of all dual use goods and
technology on the MTCR Annex; and
[(B) may include, as part of the control
list established under this section, goods and
technology that would provide a direct and
immediate impact on the development of missile
delivery systems and are not included in the
MTCR Annex but which the United States is
proposing to the other MTCR adherents to have
included in the MTCR Annex.
[(2) Requirement of individual validated
licenses.--The Secretary shall require an individual
validated license for--
[(A) any export of goods or technology on
the list established under paragraph (1) to any
country; and
[(B) any export of goods or technology 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 MTCR adherent.
[(3) Policy of denial of licenses.--(A) Licenses
under paragraph (2) should in general be denied if the
ultimate consignee of the goods or technology is a
facility in a country that is not an adherent to the
Missile Technology Control Regime and the facility is
designed to develop or build missiles.
[(B) Licenses under paragraph (2) shall be denied
if the ultimate consignee of the goods or technology is
a facility in a country the government of which has
been determined under subsection (j) to have repeatedly
provided support for acts of international terrorism.
[(4) Consultation with other departments.--(A) A
determination of the Secretary to approve an export
license under paragraph (2) for the export of goods or
technology to a country of concern regarding missile
proliferation may be made only after consultation with
the Secretary of Defense and the Secretary of State for
a period of 20 days. The countries of concern referred
to in the preceding sentence shall be maintained on a
classified list by the Secretary of State, in
consultation with the Secretary and the Secretary of
Defense.
[(B) Should the Secretary of Defense disagree with
the determination of the Secretary to approve an export
license to which subparagraph (A) applies, the
Secretary of Defense shall so notify the Secretary
within the 20 days provided for consultation on the
determination. The Secretary of Defense shall at the
same time submit the matter to the President for
resolution of the dispute. The Secretary shall also
submit the Secretary's recommendation to the President
on the license application.
[(C) The President shall approve or disapprove the
export license application within 20 days after
receiving the submission of the Secretary of Defense
under subparagraph (B).
[(D) Should the Secretary of Defense fail to notify
the Secretary within the time period prescribed in
subparagraph (B), the Secretary may approve the license
application without awaiting the notification by the
Secretary of Defense. Should the President fail to
notify the Secretary of his decision on the export
license application within the time period prescribed
in subparagraph (C), the Secretary may approve the
license application without awaiting the President's
decision on the license application.
[(E) Within 10 days after an export license is
issued under this subsection, the Secretary shall
provide to the Secretary of Defense and the Secretary
of State the license application and accompanying
documents issued to the applicant, to the extent that
the relevant Secretary indicates the need to receive
such application and documents.
[(5) Information sharing.--The Secretary shall
establish a procedure for information sharing with
appropriate officials of the intelligence community, as
determined by the Director of Central Intelligence, and
other appropriate Government agencies, that will ensure
effective monitoring of transfers of MTCR equipment or
technology and other missile technology.
[(m) Chemical and Biological Weapons.--
[(1) Establishment of list.--The Secretary, in
consultation with the Secretary of State, the Secretary
of Defense, and the heads of other appropriate
departments and agencies, shall establish and maintain,
as part of the list maintained under this section, a
list of goods and technology that would directly and
substantially assist a foreign government or group in
acquiring the capability to develop, produce,
stockpile, or deliver chemical or biological weapons,
the licensing of which would be effective in barring
acquisition or enhancement of such capability.
[(2) Requirement for validated licenses.--The
Secretary shall require a validated license for any
export of goods or technology on the list established
under paragraph (1) to any country of concern.
[(3) Countries of concern.--For purposes of
paragraph (2), the term ``country of concern'' means
any country other than--
[(A) a country with whose government the
United States has entered into a bilateral or
multilateral arrangement for the control of
goods or technology on the list established
under paragraph (1); and
[(B) such other countries as the Secretary
of State, in consultation with the Secretary
and the Secretary of Defense, shall designate
consistent with the purposes of the Chemical
and Biological Weapons Control and Warfare
Elimination Act of 1991.
[(n) Crime Control Instruments.--(1) Crime control and
detection instruments and equipment shall be approved for
export by the Secretary only pursuant to a validated export
license. Notwithstanding any other provision of this Act--
[(A) any determination of the Secretary of what
goods or technology shall be included on the list
established pursuant to subsection (1) of this section
as a result of the export restrictions imposed by this
subsection shall be made with the concurrence of the
Secretary of State, and
[(B) 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 in concurrence with the recommendations of the
Secretary of State submitted to the Secretary with
respect to the application pursuant to section 10(e) of
this Act,
except that, if the Secretary does not agree with the Secretary
of State with respect to any determination under subparagraph
(A) or (B), the matter shall be referred to the President for
resolution.
[(2) 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.
[(o) Control List.--The Secretary shall establish and
maintain, as part of the control list, a list of any goods or
technology subject to export controls under this section, and
the countries to which such controls apply. The Secretary shall
clearly identify on the control list which goods or technology,
and which countries or destinations, are subject to which types
of controls under this section. Such list shall consist of
goods and technology identified by the Secretary of State, with
the concurrence of the Secretary. If the Secretary and the
Secretary of State are unable to agree on the list, the matter
shall be referred to the President. Such list shall be reviewed
not less frequently than every three years in the case of
controls maintained cooperatively with other countries, and
annually in the case of all other controls, for the purpose of
making such revisions as are necessary in order to carry out
this section. During the course of such review, an assessment
shall be made periodically of the availability from sources
outside the United States, or any of its territories or
possessions, of goods and technology comparable to those
controlled for export from the United States under this
section.
[(p) Effect on Existing Contracts and Licenses.--The
President may not, under this section, prohibit or curtail the
export or reexport of goods, technology, or other information--
[(1) in performance of a contract or agreement
entered into before the date on which the President
reports to the Congress, pursuant to subsection (f) of
this section, his intention to impose controls on the
export or reexport of such goods, technology, or other
information, or
[(2) under a validated license or other
authorization issued under this Act,
unless and until 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 or curtailment of such
contracts, agreements, licenses, or authorizations will
be instrumental in remedying the situation posing the
direct threat, and
[(C) the export controls will continue only so long
as the direct threat persists.
[(q) Extension of Certain Controls.--Those export controls
imposed under this section with respect to South Africa which
were in effect on February 28, 1982, and ceased to be effective
on March 1, 1982, September 15, 1982, or January 20, 1983,
shall become effective on the date of the enactment of this
subsection, and shall remain in effect until 1 year after such
date of enactment. At the end of that 1-year period, any of
those controls made effective by this subsection may be
extended by the President in accordance with subsections (b)
and (f) of this section.
[(r) Expanded Authority to Impose Controls.--(1) In any
case in which the President determines that it is necessary to
impose controls under this section without any limitation
contained in subsection (c), (d), (e), (g), (h), or (m) of this
section, the President may impose those controls only if the
President submits that determination to the Congress, together
with a report pursuant to subsection (f) of this section with
respect to the proposed controls, and only if a law is enacted
authorizing the imposition of those controls. If a joint
resolution authorizing the imposition of those controls is
introduced in either House of Congress within 30 days after the
Congress receives the determination and report of the
President, that joint resolution shall be referred to the
Committee on Banking, Housing, and Urban Affairs of the Senate
and to the appropriate committee of the House of
Representatives. If either such committee 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
joint resolution.
[(2) For purposes of this subsection, the term ``joint
resolution'' means a joint resolution the matter after the
resolving clause of which is as follows: ``That the Congress,
having received on a determination of the President under
section 6(o)(1) of the Export Administration Act of 1979 with
respect to the export controls which are set forth in the
report submitted to the Congress with that determination,
authorizes the President to impose those export controls.'',
with the date of the receipt of the determination and report
inserted in the blank.
[(3) In the computation of the periods of 30 days referred
to in paragraph (1), 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.
[(s) Spare Parts.--(1) 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 for parts in goods subject to such
export controls.
[(2) With respect to export controls imposed under this
section before the date of the enactment of this subsection, an
individual validated export license shall not be required for
replacement parts which are exported to replace on a one-for-
one basis parts that were in a good that was lawfully exported
from the United States, unless the President determines that
such a license should be required for such parts.
[short supply controls
[Sec. 7. (a) Authority.--(1) In order to carry out the
policy set forth in section 3(2)(C) of this Act, the President
may prohibit or curtail the export of any goods 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 3(2)(C) of
this Act, 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 goods and treats the United States equitably in
times of short supply.
[(2) Upon imposing quantitative restrictions on exports of
any goods to carry out the policy set forth in section 3(2)(C)
of this Act, 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 from the date of publication on the impact of
such restrictions and the method of licensing used to implement
them.
[(3) 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 order to carry out the policy set
forth in section 3(2)(C) of this Act, the Secretary shall
monitor exports, and contracts for exports, of any good (other
than a commodity which is subject to the reporting requirements
of section 812 of the Agricultural Act of 1970) 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
3(2)(C) of this Act, 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) of this subsection.
[(2) The results of such monitoring 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.
[(3) 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, drilling rigs, platforms, and
equipment; petroleum refineries, natural gas processing,
liquefaction, and gasification plants; facilities for
production of synthetic natural gas or synthetic crude oil; oil
and gas pipelines, pumping stations, and associated equipment;
and vessels for transporting oil, gas, coal, and other fuels.
[(c) Petitions for Monitoring or Controls.--(1)(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 3(2)(C) of this Act.
[(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) of this subsection
is satisfied.
[(2) 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 of 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 petitioner 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 of publication
of such notice 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 that 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)(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 3(2)(C) of this Act. 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 the
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
3(2)(C) of this Act.
[(B) The Secretary shall publish in the Federal Register a
detailed statement of the reasons for the Secretary's
determination pursuant to subparagraph (A) of whether to impose
monitoring or controls, or both, including the findings of fact
in support of that determination.
[(4) 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) 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) If a petition with respect to a particular material or
group of materials has been considered in accordance with all
the procedures prescribed 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) 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) 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 action
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
3(2)(C) of this Act.
[(9) The authority under this subsection shall not be
construed to affect the authority of the Secretary under any
other provision of this Act, 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) of this
subsection.
[(10) 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 Act,
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) Domestically Produced Crude Oil.--(1) Notwithstanding
any other provision of this Act and notwithstanding subsection
(u) of section 28 of the Mineral Leasing Act of 1920 (30 U.S.C.
185), no domestically produced crude oil transported by
pipeline over right-of-way granted pursuant to section 203 of
the Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1652)
(except any such crude oil which (A) is exported to an adjacent
foreign country to be refined and consumed therein in exchange
for the same quantity of crude oil being exported from that
country to the United States; such exchange must result through
convenience or increased efficiency of transportation in lower
prices for consumers of petroleum products in the United States
as described in paragraph (2)(A)(ii) of this subsection, (B) is
temporarily exported for convenience or increased efficiency of
transportation across parts of an adjacent foreign country and
reenters the United States, or (C) is transported to Canada, to
be consumed therein, in amounts not to exceed an annual average
of 50,000 barrels per day, in addition to exports under
subparagraphs (A) and (B), except that any ocean transportation
of such oil shall be by vessels documented under section 12106
of title 46, United States Code) may be exported from the
United States, or any of its territories and possessions,
subject to paragraph (2) of this subsection.
[(2) Crude oil subject to the prohibition contained in
paragraph (1) may be exported only if--
[(A) the President so recommends to the Congress
after making and publishing express findings that
exports of such crude oil, including exchanges--
[(i) will not diminish the total quantity or
quality of petroleum refined within, stored
within, or legally committed to be transported
to and sold within the United States;
[(ii) will, within 3 months following the
initiation of such exports or exchanges, result
in (I) acquisition costs to the refiners which
purchase the imported crude oil being lower
than the acquisition costs such refiners would
have to pay for the domestically produced oil
in the absence of such an export or exchange,
and (II) not less than 75 percent of such
savings in costs being reflected in wholesale
and retail prices of products refined from such
imported crude oil;
[(iii) will be made only pursuant to contracts
which may be terminated if the crude oil
suppliers of the United States are interrupted,
threatened, or diminished;
[(iv) are clearly necessary to protect the
national interest; and
[(v) are in accordance with the provisions
of this Act; and
[(B) the President includes such findings in his
recommendation to the Congress and the Congress, within
60 days after receiving that recommendation, agrees to
a joint resolution which approves such exports on the
basis of those findings, and which is thereafter
enacted into law.
[(3) Notwithstanding any other provision of this section or
any other provision of law, including subsection (u) of section
28 of the Mineral Leasing Act of 1920, the President may export
oil to any country pursuant to a bilateral international oil
supply agreement entered into by the United States with such
nation before June 25, 1979, or to any country pursuant to the
International Emergency Oil Sharing Plan of the International
Energy Agency.
[(e) Refined Petroleum Products.--(1) In any case in which
the President determines that it is necessary to impose export
controls on refined petroleum products in order to carry out
the policy set forth in section 3(2)(C) of this Act, the
President shall notify the Congress of that determination. The
President shall also notify the Congress if and when he
determines that such export controls are no longer necessary.
During any period in which a determination that such export
controls are necessary is in effect, no refined petroleum
product may be exported except pursuant to an export license
specifically authorizing such export. Not later than 5 days
after an application for a license to export any refined
petroleum product or residual fuel oil is received, the
Secretary shall notify the Congress of such application,
together with the name of the exporter, the destination of the
proposed export, and the amount and price of the proposed
export. Such notification shall be made to the chairman of the
Committee on Foreign Affairs of the House of Representatives
and the chairman of the Committee on Banking, Housing, and
Urban Affairs of the Senate.
[(2) The Secretary may not grant such license during the
30-day period beginning on the date on which notification to
the Congress under paragraph (1) is received, unless the
President certifies in writing to the Speaker of the House of
Representatives and the President pro tempore of the Senate
that the proposed export is vital to the national interest and
that a delay in issuing the license would adversely affect that
interest.
[(3) This subsection shall not apply to (A) any export
license application for exports to a country with respect to
which historical export quotas established by the Secretary on
the basis of past trading relationships apply, or (B) any
license application for exports to a country if exports under
the license would not result in more than 250,000 barrels of
refined petroleum products being exported from the United
States to such country in any fiscal year.
[(4) For purposes of this subsection, ``refined petroleum
product'' means gasoline, kerosene, distillates, propane or
butane gas, diesel fuel, and residual fuel oil refined within
the United States or entered for consumption within the United
States.
[(5) The Secretary may extend any time period prescribed in
section 10 of this Act to the extent necessary to take into
account delays in action by the Secretary on a license
application on account of the provisions of this subsection.
[(f) Certain Petroleum Products.--Petroleum products
refined in United States Foreign Trade Zones, or in the United
States Territory of Guam, from foreign crude oil shall be
excluded from any quantitative restrictions imposed under this
section except that, if the Secretary finds that a product is
in short supply, the Secretary may issue such regulations as
may be necessary to limit exports.
[(g) Agricultural Commodities.--(1) The authority conferred
by this section shall not be exercised with respect to any
agricultural commodity, including fats and oils 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 such exercise of authority is
required to carry out the policies set forth in subparagraph
(A) or (B) of paragraph (2) of section 3 of this Act. The
Secretary of Agriculture shall, by exercising the authorities
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) 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 3(2)(C) of this Act
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 materials 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 implement this paragraph.
[(3)(A) If the President imposes export controls on any
agricultural commodity in order to carry out the policy set
forth in paragraph (2)(B), (2)(C), (7), or (8) of section 3 of
this Act, 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 its
receipt of the report, adopts 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 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 Act 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)(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 7(g)(3) of the Export Administration Act of 1979, 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
the chairman of the Committee on Foreign Affairs, for himself
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 himself 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) All joint resolutions introduced in the House of
Representatives shall be referred to the appropriate committee
and all joint resolutions introduced in the Senate shall be
referred to the Committee on Banking, Housing, and Urban
Affairs.
[(D) 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
joint resolution or of any other joint resolution introduced
with respect to the same matter.
[(E) 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 or
discharged pursuant to the provisions of this paragraph, it
shall be in order for the Committee on Rules of the House of
Representatives to present for consideration a resolution of
the House of Representatives providing procedures for the
immediate consideration of a joint resolution under this
paragraph which may be similar, if applicable, to the
procedures set forth in section 601(b)(4) of the International
Security Assistance and Arms Export Control Act of 1976.
[(F) 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 had been received from the
other House; but
[(ii) the vote on final passage shall be on the
joint resolution of the other House.
[(5) In the computation of the period of 60 days referred
to in paragraph (3) and the period of 30 days referred to in
subparagraph (D) of paragraph (4), 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.
[(h) Barter Agreements.--(1) The exportation pursuant to a
barter agreement of any goods which may lawfully be exported
from the United States, for any goods which may lawfully be
imported into the United States, may be exempted, in accordance
with paragraph (2) of this subsection, from any quantitative
limitation on exports (other than any reporting requirement)
imposed to carry out the policy set forth in section 3(2)(C) of
this Act.
[(2) the Secretary shall grant an exemption under paragraph
(1) if the Secretary finds, after consulation 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
goods to be exported pursuant to the barter
agreement will not be required to satisfy the
average amount of such goods estimated to be
required annually by the domestic economy and
will be surplus thereto; and
[(ii) the average annual quantity of the
goods to be imported will be less than the
average amount of such goods 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) For purposes of this subsection, the term ``barter
agreement'' means any agreement which is made for the exchange,
without monetary consideration, of any goods produced in the
United States for any goods produced outside of the United
States.
[(4) This subsection shall apply only with respect to
barter agreements entered into after the effective date of this
Act.
[(i) Unprocessed Red Cedar.--(1) The Secretary shall
require a validated license, under the authority contained in
subsection (a) of this section, for the export of unprocessed
western red cedar (Thuja plicata) logs, harvested from State or
Federal lands. The Secretary shall impose quanitiative
restrictions upon the export of unprocessed western red cedar
logs during the 3-year period beginning on the effective date
of this Act as follows:
[(A) Not more than thirty million board feet
scribner of such logs may be exported during the first
year of such 3-year period.
[(B) Not more than fifteen million board feet
scribner of such logsmay be exported during the second
year of such period.
[(C) Not more than five million board feet scribner
of such logs may be exported during the third year of
such period.
After the end of such 3-year period, no unprocessed western red
cedar logs harvested from State or Federal lands may be
exported from the United States.
[(2) To the maximum extent practicable, the Secretary shall
utilize the multiple validated export licenses described in
section 4(a)(2) of ths Act in lieu of validated licenses for
exports under this subsection.
[(3) The Secretary shall allocate export licenses to
exporters pursuant to this subsection on the basis of a prior
history of exportation by such exporters and such other factors
as the Secretary considers necessary and appropriate to
minimize any hardship to the producers of western red cedar and
to further the foreign policy of the United States.
[(4) Unprocessed western red cedar logs shall not be
considered to be an agricultural commodity for purposes of
subsection (g) of this section.
[(5) As used in this subsection, the term ``unprocessed
western red cedar'' means red cedar timber which has not been
processed into--
[(A) lumber of American Lumber Standards Grades of
Number 3 dimension or better, or Pacific Lumber
Inspection Bureau Export R-List Grades of Number 3
common or better;
[(B) chips, pulp, and pulp products;
[(C) veneer and plywood;
[(D) poles, posts, or pilings cut or treated with
preservative for use as such and not intended to be
further processed; or
[(E) shakes and shingles.
[(j) Effect of Controls on Existing Contracts.--The export
restrictions contained in subsection (i) of this section and
any export controls imposed under 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. Any export controls imposed under this section on any
agricultural commodity (including fats, oils, and animal hides
and skins) or on any forest product or fishery product, shall
not affect any contract to export entered into before the date
on which such controls are imposed. For purposes of this
subsection, 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 goods or
technology.
[(k) Oil Exports for Use by United States Military
Facilities.--For purposes of subsection (d) of this section,
and for purposes of any export controls imposed under this Act,
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.
[foreign boycotts
[Sec. 8. (a) Prohibitions and Exceptions.--(1) For the
purpose of implementing the policies set forth in subparagraph
(A) or (B) of paragraph (5) of section 3 of this Act, the
President shall issue regulations prohibiting any United States
person, with respect to his 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 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 which 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 contribution to, or is
otherwise associated with or involved in the activities
of any charitable or fraternal organization which
supports the boycotted country.
[(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) Regulations issued pursuant to paragraph (1) shall
provide exceptions for--
[(A) complying or agreeing to comply with
requirements (i) prohibiting the import of goods or
services from the boycotted country or goods 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 goods to the boycotted
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 goods 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 transshipments 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 that country with respect to
his activities exclusively therein, and such
regulations may contain exceptions for such resident
complying with the laws or regulations of that foreign
country governing imports into such country of
trademarked, trade named, or similarly specifically
identifiable products, or components of products for
his own use, including the performance of contractual
services within that country, as may be defined by such
regulations.
[(3) Regulations issued pursuant to paragraphs (2)(C) and
(2)(F) shall not provide exceptions from paragraphs (1)(B) and
(1)(C).
[(4) Nothing in this subsection may be construed to
supersede or limit the operation of the antitrust, or civil
rights laws of the United States.
[(5) 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) Foreign Policy Controls.--(1) In addition to the
regulations issued pursuant to subsection (a) of this section,
regulations issued under section 6 of this Act shall implement
the policies set forth in section 3(5).
[(2) 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 3(5) 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 goods 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 3(5) of this Act.
[(c) Preemption.--The provisions of this section and the
regulations issued pursuant thereto shall preempt any 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, which law, rule, or regulation 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.
[procedures for hardship relief from export controls
[Sec. 9. (a) Filing of Petitions.--Any person who, in such
person's domestic manufacturing process or other domestic
business operation, utilizes a product produced abroad in whole
or in part from a good historically obtained from the United
States but which has been made subject to export controls, or
any person who historically has exported such a good, may
transmit a petition of hardship to the Secretary requesting an
exemption from such controls in order to alleviate any unique
hardship resulting from the imposition of such controls. A
petition under this section shall be in such form as the
Secretary shall prescribe and shall contain information
demonstrating the need for the relief requested.
[(b) Decision of the Secretary.--Not later than 30 days
after receipt of any petition under subsection (a), the
Secretary shall transmit a written decision to the petitioner
granting or denying the requested relief. Such decision shall
contain a statement setting forth the Secretary's basis for the
grant or denial. Any exemption granted may be subject to such
conditions as the Secretary considers appropriate.
[(c) Factors To Be Considered.--For purposes of this
section, the Secretary's decision with respect to the grant or
denial of relief from unique hardship resulting directly or
indirectly from the imposition of export controls shall reflect
the Secretary's consideration of factors such as the following:
[(1) Whether denial would cause a unique hardship
to the petitioner which can be alleviated only by
granting an exception to the applicable regulations. In
determining whether relief shall be granted, the
Secretary shall take into account--
[(A) ownership of material for which there
is no practicable domestic market by virtue of
the location or nature of the material;
[(B) potential serious financial loss to
the applicant if not granted an exception;
[(C) inability to obtain, except through
import, an item essential for domestic use
which is produced abroad from the good under
control;
[(D) the extent to which denial would
conflict, to the particular detriment of the
applicant, with other national policies
including those reflected in any international
agreement to which the United States is a
party;
[(E) possible adverse effects on the
economy (including unemployment) in any
locality or region of the United States; and
[(F) other relevant factors, including the
applicant's lack of an exporting history during
any base period that may be established with
respect to export quotas for the particular
good.
[(2) The effect a finding in favor of the applicant
would have on attainment of the basic objectives of the
short supply control program.
In all cases, the desire to sell at higher prices and thereby
obtain greater profits shall not be considered as evidence of a
unique hardship, nor will circumstances where the hardship is
due to imprudent acts or failure to act on the part of the
petitioner.
[procedures for processing export license applications; other inquiries
[Sec. 10. (a) Primary Responsibility of the Secretary.--(1)
All export license applications required under this Act shall
be submitted by the applicant to the Secretary. All
determinations with respect to any such application shall be
made by the Secretary, subject to the procedures provided in
this section.
[(2) It is the intent of the Congress that a determination
with respect to any export license application be made to the
maximum extent possible by the Secretary without referral of
such application to any other department or agency of the
Government.
[(3) To the extent necessary, the Secretary shall seek
information and recommendations from the Government departments
and agencies concerned with aspects of United States domestic
and foreign polices and operations having an important bearing
on exports. Such departments and agencies shall cooperate fully
in rendering such information and recommendations.
[(b) Initial Screening.--Within 10 days after the date on
which any export license application is submitted pursuant to
subsection (a)(1), the Secretary shall--
[(1) sent the applicant an acknowledgment of the
receipt of the application and the date of the receipt;
[(2) submit to this applicant a written description
of the procedures required by this section, the
responsibilities of the Secretary and of other
departments and agenices with respect to the
application and the rights of the applicant;
[(3) return the application without action if the
application is improperly completed or if additional
information is required, with sufficient information to
permit the application to be properly resubmitted, in
which case of such application is resubmitted, it shall
be treated as a new application for the purpose of
calculating the time periods prescribed in this
section;
[(4) determine whether it is necessary to refer the
application to any other department or agency and, if
such referral is determined to be necessary, inform the
applicant of any such department or agency to which the
application will be referred; and
[(5) determine whether it is necessary to submit
the application to a multilateral review process,
pursuant to a multilateral agreement, formal or
informal, to which the United States is a part and, if
so inform the applicant of this requirement.
[(c) Action on Certain Applications.--Except as provided in
subsection (o), in each case in which the Secretary determines
that it is not necessary to refer an application to any other
department or agency for its information and recommendations, a
license shall be formally issued or denied within 60 days after
a properly completed application has been submited pursuant to
this section.
[(d) Referral to Other Departments and Agencies.--Except in
the case of exports described in subsection (o), in each case
in which the Secretary determines that it is necessary to refer
an application to any other department or agency for its
information and recommendations, the Secretary shall, within 20
days after the submission of a properly completed application--
[(1) refer the application, together with all
necessary analysis and recommendations of the
Department of Commerce, concurrently to all such
departments or agencies; and
[(2) if the applicant so requests, provide the
applicant with an opportunity to review for accuracy
any documentation to be referred to any such department
or agency with respect to such application for the
purpose of describing the export in question in order
to determine whether such documentation accurately
describes the proposed export.
Notwithstanding the 10-day period set forth in subsection (b),
in the case of exports described in subsection (o), in each
case in which the Secretary determines that it is necessary to
refer an application to any other department or agency for its
information and recommendations, the Secretary shall,
immediately upon receipt of the properly completed application,
refer the application to such department or agency for its
review. Such review shall be concurrent with that of the
Department of Commerce.
[(e) Action by Other Departments and Agencies.--(1) Any
department or agency to which an application is referred
pursuant to subsection (d) shall submit to the Secretary the
information or recommendations requested with respect to the
application. The information or recommendations shall be
submitted within 20 days after the department or agency
receives the application or, in the case of exports described
in subsection (o), before the expiration of the time periods
permitted by that subsection. Except as provided in paragraph
(2), any such department or agency which does not submit its
recommendations within the time period prescribed in the
preceding sentence shall be deemed by the Secretary to have no
objection to the approval of such application.
[(2)(A) Except in the case of exports described in
subsection (o), if the head of any such department or agency
notifies the Secretary before the expiration of the time period
provided in paragraph (1) for submission of its recommendations
that more time is required for review by such department or
agency, such department or agency shall have an additional 20-
day period to submit its recommendations to the Secretary. If
such department or agency does not submit its recommendations
within the time period prescribed by the preceding sentence, it
shall be deemed by the Secretary to have no objection to the
approval of such application.
[(B) In the case of exports described in subsection (o), if
the head of any such department or agency notifies the
Secretary, before the expiration of the 15-day period provided
in subsection (o)(1), that more time is required for review by
such department or agency, the Secretary shall notify the
applicant, pursuant to subsection (o)(1)(C), that additional
time is required to consider the application, and such
department or agency shall have additional time to consider the
application within the limits permitted by subsection (o)(2).
If such department or agency does not submit its
recommendations within the time periods permitted under
subsection (o), it shall be deemed by the Secretary to have no
objection to the approval of such application.
[(f) Action by the Secretary.--(1) Within 60 days after
receipt of the recommendations of other departments and
agencies with respect to a license application, as provided in
subsection (e), the Secretary shall formally issue or deny the
license. In deciding whether to issue or deny a license, the
Secretary shall take into account any recommendation of a
department or agency with respect to the application in
question. In cases where the Secretary receives conflicting
recommendations, the Secretary shall, within the 60-day period
provided for in this subsection, take such action as may be
necessary to resolve such conflicting recommendations. The
provisions of this paragraph shall not apply in the case of
exports described in subsection (o).
[(2) In cases where the Secretary receives questions or
negative considerations or recommendations from any other
department or agency with respect to an application, the
Secretary shall, to the maximum extent consistent with the
national security and foreign policy of the United States,
inform the applicant in writing of the specific questions
raised and any such negative considerations or recommendations.
Before a final determination with respect to the application in
made, the applicant shall be entitled--
[(A) to respond in writing to such questions,
considerations, or recommendations within 30 days after
receipt of such information from the Secretary; and
[(B) upon the filing of a written request with the
Secretary within 15 days after the receipt of such
information, to respond in person to the department or
agency raising such questions, considerations, or
recommendations.
The provisions of this paragraph shall not apply in the case of
exports described in subsection (o).
[(3) In cases where the Secretary has determined that an
application should be denied, the applicant shall be informed
in writing, within 5 days after such determination is made,
of--
[(A) the determination,
[(B) the statutory basis for the proposed denial,
[(C) the policies set forth in section 3 of this
Act which would be furthered by the proposed denial,
[(D) what if any modifications in or restrictions
on the goods or technology for which the license was
sought would allow such export to be compatible with
export controls imposed under this Act,
[(E) which officers and employees of the Department
of Commerce who are familar with the application will
be made reasonably available to the applicant for
considerations with regard to such modifications or
restrictions, if appropriate,
[(F) to the extent consistent with the national
security and foreign policy of the United States, the
specific considerations which led to the determination
to deny the application, and
[(G) the availability of appeal procedures.
The Secretary shall allow the applicant at least 30 days to
respond to the Secretary's determination before the license
application is denied. In the event decisions on license
applications are deferred inconsistent with the provisions of
this section, the applicant shall be so informed in writing
within 5 days after such deferral.
[(4) If the Secretary determines that a particular
application or set of applications is of exceptional importance
and complexity, and that additional time is required for
negotiations to modify the application or applications, the
Secretary may extend any time period prescribed in this
section. The Secretary shall notify the Congress and the
applicant of such extension and the reasons therefor. The
provisions of this paragraph shall not apply in the case of
exports described in subsection (o).
[(g) Special Procedures for Secretary of Defense.--(1)
Notwithstanding any other provision of this section, the
Secretary of Defense is authorized to review any proposed
export of any goods or technology to any country to which
exports are controlled for national security purposes and,
whenever the Secretary of Defense determines that the export of
such goods or technology will make a significant contribution,
which would prove detrimental to the national security of the
United States, to the military potential of any such country,
to recommend to the President that such export be disapproved.
[(2) Notwithstanding any other provision of law, the
Secretary of Defense shall determine, in consultation with the
Secretary, and confirm in writing the types and categories of
transactions which should be reviewed by the Secretary of
Defense in order to make a determination referred to in
paragraph (1). Whenever a license or other authority is
requested for the export to any country to which exports are
controlled for national security purposes of goods or
technology within any such type or category, the Secretary
shall notify the Secretary of Defense of such request, and the
Secretary may not issue any license or other authority pursuant
to such request before the expiration of the period within
which the President may disapprove such export. The Secretary
of Defense shall carefully consider any notification submitted
by the Secretary pursuant to this paragraph and, not later than
20 days after notification of the request, shall--
[(A) recommend to the President and the Secretary
that he disapprove any request for the export of the
goods or technology involved to the particular country
if the Secretary of Defense determines that the export
of such goods or technology will make a significant
contribution, which would prove detrimental to the
national security of the United States, to the military
potential of such country or any other country;
[(B) notify the Secretary that he would recommend
approval subject to specified conditions; or
[(C) recommend to the Secretary that the export of
goods or technology be approved.
Whenever the Secretary of Defense makes a recommendation to the
President pursuant to paragraph (2)(A), the Secretary shall
also submit his recommendation to the President on the request
to export if the Secretary differs with the Secretary of
Defense. If the President notifies the Secretary, with 20 days
after receiving a recommendation from the Secretary of Defense,
that he disapproves such export, no license or other authority
may be issued for the export of such goods or technology to
such country. If the Secretary of Defense fails to make a
recommendation or notification under this paragraph within the
20-day period specified in the third sentence, or if the
President, within 20 days after receiving a recommendation from
the Secretary of Defense with respect to an export, fails to
notify the Secretary that he approves or disapproves the
export, the Secretary shall approve or deny the request for a
license or other authority to export without such
recommendation or notification.
[(3) The Secretary shall approve or disapprove a license
application, and issue or deny a license, in accordance with
the provisions of this subsection, and, to the extent
applicable, in accordance with the time periods and procedures
otherwise set forth in this section.
[(h) Multilateral Controls.--In any case in which an
application, which has been finally approved under subsection
(c), (f), or (g) of this section, is required to be submitted
to a multilateral review process, pursuant to a multilateral
agreement, formal or informal, to which the United States is a
party, the license shall not be issued as prescribed in such
subsections, but the Secretary shall notify the applicant of
the approval of the application (and the date of such approval)
by the Secretary subject to such multilateral review. The
license shall be issued upon approval of the application under
such multilateral review. If such multilateral review has not
resulted in a determination with respect to the application
within 40 days after such date, the Secretary's approval of the
license shall be final and the license shall be issued, unless
the Secretary determines that issuance of the license would
prove detrimental to the national security of the United
States. At the time at which the Secretary makes such a
determination, the Secretary shall notify the applicant of the
determination and shall notify the Congress of the
determination, the reasons for the determination, the reasons
for which the multilateral review could not be concluded within
such 40-day period, and the actions planned or being taken by
the United States Government to secure conclusion of the
multilateral review. At the end of every 40-day period after
such notification to Congress, the Secretary shall advise the
applicant and the Congress of the status of the application,
and shall report to the Congress in detail on the reasons for
the further delay and any further actions being taken by the
United States Government to secure conclusion of the
multilateral review. In addition, at the time at which the
Secretary issues or denies the license upon conclusion of the
multilateral review, the Secretary shall notify the Congress of
such issuance or denial and of the total time required for the
multilateral review.
[(i) Records.--The Secretary and any department or agency
to which any application is referred under this section shall
keep accurate records with respect to all applications
considered by the Secretary or by any such department or
agency, including, in the case of the Secretary, any dissenting
recommendations received from any such department or agency.
[(j) Appeal and Court Action.--(1) The Secretary shall
establish appropriate procedures for any applicant to appeal to
the Secretary the denial of an export license application of
the applicant.
[(2) 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)(4) 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) 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 a restraining order, a
temporary or permanent injunction, or other appropriate relief,
to require compliance with the requirements of this section.
The United States district courts shall have jurisdiction to
provide such relief, as appropriate.
[(k) Changes in Requirements for Applications.--Except as
provided in subsection (b)(3) of this section, in any case in
which, after a license application is submitted, the Secretary
changes the requirements for such a license application, the
Secretary may request appropriate additional information of the
applicant, but the Secretary may not return the application to
the applicant without action because it fails to meet the
changed requirements.
[(l) Other Inquiries.--(1) In any case in which the
Secretary receives a written request asking for the proper
classification of a good or technology on the control list, the
Secretary shall, within 10 working days after receipt of the
request, inform the person making the request of the proper
classification.
[(2) In any case in which the Secretary receives a written
request for information about the applicability of export
license requirements under this Act to a proposed export
transaction or series of transactions, the Secretary shall,
within 30 days after receipt of the request, reply with that
information to the person making the request.
[(m) Small Business Assistance.--Not later than 120 days
after the date of the enactment of this subsection, the
Secretary shall develop and transmit to the Congress a plan to
assist small businesses in the export licensing application
process under this Act. The plan shall include, among other
things, arrangements for counseling small businesses on filing
applications and identifying goods or technology on the control
list, proposals for seminars and conferences to educate small
businesses on export controls and licensing procedures, and the
preparation of informational brochures. The Secretary shall,
not later than 120 days after the date of the enactment of the
Export Enhancement Act of 1988, report to the Congress on steps
taken to implement the plan developed under this subsection to
assist small businesses in the export licensing application
process.
[(n) Reports on License Applications.--(1) Not later than
180 days after the date of the enactment of this subsection,
and not later than the end of each 3-month period thereafter,
the Secretary shall submit to the Committee on Foreign Affairs
of the House of Representatives and to the Committee on
Banking, Housing, and Urban Affairs of the Senate a report
listing--
[(A) all applications on which action was completed
during the preceding 3-month period and which required
a period longer than the period permitted under
subsection (c), (f)(1), or (h) of this section, as the
case may be, before notification of a decision to
approve or deny the application was sent to the
applicant; and
[(B) in a separate section, all applications which
have been in process for a period longer than the
period permitted under subsection (c), (f)(1), or (h)
of this section, as the case may be, and upon which
final action has not been taken.
[(2) With regard to each application, each listing shall
identify--
[(A) the application case number;
[(B) the value of the goods or technology to which
the application relates;
[(C) the country of destination of the goods or
technology;
[(D) the date on which the application was received
by the Secretary;
[(E) the date on which the Secretary approved or
denied the application;
[(F) the date on which the notification of approval
or denial of the application was sent to the applicant;
and
[(G) the total number of days which elapsed between
receipt of the application, in its properly completed
form, and the earlier of the last day of the 3-month
period to which the report relates, or the date on
which notification of approval or denial of the
application was sent to the applicant.
[(3) With respect to an application which was referred to
other departments or agencies, the listing shall also include--
[(A) the departments or agencies to which the
application was referred;
[(B) the date or dates of such referral; and
[(C) the date or dates on which recommendations
were received from those departments or agencies.
[(4) With respect to an application referred to any other
department or agency which did not submit or has not submitted
its recommendations on the application within the period
permitted under subsection (e) of this section to submit such
recommendations, the listing shall also include--
[(A) the office responsible for processing the
application and the position of the officer responsible
for the office; and
[(B) the period of time that elapsed before the
recommendations were submitted or that has elapsed
since referral of the application, as the case may be.
[(5) Each report shall also provide an introduction which
contains--
[(A) summary of the number of applications
described in paragraph (1)(A) and (B) of this
subsection, and the value of the goods or technology
involved in the applications, grouped according to--
[(i) the number of days which elapsed
before action on the applications was
completed, or which has elapsed without action
on the applications being completed, as
follows: 61 to 75 days, 76 to 90 days, 91 to
105 days, 106 to 120 days, and more than 120
days; and
[(ii) the number of days which elapsed
before action on the applications was
completed, or which has elapsed without action
on the applications being completed, beyond the
period permitted under subsection (c), (f)(1),
or (h) of this section for the processing of
applications, as follows: not more than 15
days, 16 to 30 days, 31 to 45 days, 46 to 60
days, and more than 60 days; and
[(B) a summary by country of destination of the
number of applications described in paragraph (1)(A)
and (B) of this subsection, and the value of the goods
or technology involved in applications, on which action
was not completed within 60 days.
[(o) Exports to Members of Coordinating Committee.--(1)
Fifteen working days after the date of formal filing with the
Secretary of an individual validated license application for
the export of goods or technology to a country that maintains
export controls on such goods or technology pursuant to the
agreement of the governments participating in the group known
as the coordinating Committee, a license for the transaction
specified in the application shall become valid and effective
and the goods or technology are authorized for export pursuant
to such license unless--
[(A) the application has been otherwise approved by
the Secretary, in which case it shall be valid and
effective according to the terms of the approval;
[(B) the application has been denied by the
Secretary pursuant to this section and the applicant
has been so informed, or the applicant has been
informed, pursuant to subsection (f)(3) of this
section, that the application should be denied; or
[(C) the Secretary requires additional time to
consider the application and the applicant has been so
informed.
[(2) In the event that the Secretary notifies an applicant
pursuant to paragraph (1)(C) that the Secretary notifies an
applicant pursuant to paragraph (1)(C) that more time is
required to consider an individual validated license
application, a license for the transaction specified in the
application shall become valid and effective and the goods or
technology are authorized for export pursuant to such license
30 working days after the date that such license application
was formally filed with the Secretary unless--
[(A) the application has been otherwise approved by
the Secretary, in which case it shall be valid and
effective according to the terms of the approval; or
[(B) the application has been denied by the
Secretary pursuant to this section and the applicant
has been so informed, or the applicant has been
informed, pursuant to subsection (f)(3) of this
section, that the application should be denied.
[(3) In reviewing an individual license application subject
to this subsection, the Secretary shall evaluate the
information set forth in the application and the reliability of
the end-user.
[(4) Nothing in this subsection shall affect the scope or
availability of licenses authorizing multiple exports set forth
in section 4(a)(2) of this Act.
[(5) The provisions of this subsection shall take effect 4
months after the date of the enactment of the Export
Administration Amendments Act of 1985.
[violations
[Sec. 11. (a) In General.--Except as provided in subsection
(b) of this section, whoever knowingly violates or conspires to
or attempts to violate any provision of this Act or any
regulation, order, or license issued thereunder shall be fined
not more than five times the value of the exports involved or
$50,000, whichever is greater, or imprisoned not more than 5
years, or both.
[(b) Willful Violations.--(1) Whoever willfully violates or
conspires to or attempts to violate any provision of this Act
or any regulation, order, or license issued thereunder, with
knowledge that the exports involved will be used for the
benefit of, or that the destination or intended destination of
the goods or technology involved is, any controlled country or
any country to which exports are controlled for foreign policy
purposes--
[(A) except in the case of an individual, shall be
fined not more than five times the value of the exports
involved or $1,000,000, whichever is greater; and
[(B) in the case of an individual, shall be fined
not more than $250,000, or imprisoned not more than 10
years, or both.
[(2) Any person who is issued a validated license under
this Act for the export of any good or technology to a
controlled country and who, with knowledge that such a good or
technology is being used by such controlled country for
military or intelligence gathering purposes contrary to the
conditions under which the license was issued, willfully fails
to report such use of the Secretary of Defense--
[(A) except in the case of an individual, shall be
fined not more than five times the value of the exports
involved or $1,000,000, whichever is greater; and
[(B) in the case of an individual, shall be fined
not more than $250,000, or imprisoned not more than 5
years, or both.
[(3) Any person who possesses any goods or technology--
[(A) with the intent to export such goods or
technology in violation of an export control imposed
under section 5 or 6 of this Act or any regulation,
order, or license issued with respect to such control,
or
[(B) knowing or having reason to believe that the
goods or technology would be so exported,
shall, in the case of a violation of an export control imposed
under section 5 (or any regulation, order, or license issued
with respect to such control), be subject to the penalties set
forth in paragraph (1) of this subsection and shall, in the
case of a violation of an export control imposed under section
6 (or any regulation, order, or license issued with respect to
such control), be subject to the penalties set forth in
subsection (a).
[(4) Any person who takes any action with the intent to
evade the provisions of this act or any regulation, order, or
license issued under this Act shall be subject to the penalties
set forth in subsection (a), except that in the case of an
evasion of an export control imposed under section 5 or 6 of
this act (or any regulation, order, or license issued with
respect to such control), such person shall be subject to the
penalties set forth in paragraph (1) of this subsection.
[(5) Nothing in this subsection or subsection (a) shall
limit the power of the Secretary to define by regulations
violations under this Act.
[(c) Civil Penalties; Administrative Sanctions.--(1) The
Secretary (and officers and employees of the Department of
Commerce specifically designated by the Secretary) may impose a
civil penalty not to exceed $10,000 for each violation of this
Act or any regulation, order, or license issued under this act,
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 involving national security controls
imposed under section 5 of this Act or controls imposed on the
export of defense articles and defense services under section
38 of the Arms Export Control Act may not exceed $100,000.
[(2)(A) The authority under this Act to suspend or revoke
the authority of any United States person to export goods or
technology may be used with respect to any violation of the
regulations issued pursuant to section 8(a) of this Act.
[(B) Any administrative sanction (including any civil
penalty or any suspension or revocation of authority to export)
imposed under this Act for a violation of the regulations
issued pursuant to section 8(a) of this Act 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.
[(C) Any charging letter or other document initiating
administrative proceedings for the imposition of sanctions for
violations of the regulations issued pursuant to section 8(a)
of this Act shall be made available for public inspection and
copying.
[(3) An exception may not be made to any order issued under
this Act which revokes the authority of a United States person
to export goods or technology unless the Committee on Foreign
Affairs of the House of Representatives and the Committee on
Banking, Housing, and Urban Affairs of the Senate are first
consulted concerning the exception.
[(4) The President may by regulation provide standards for
establishing levels of civil penalty provided in this
subsection based upon the seriousness of the violation, the
culpability of the violator, and the violator's record of
cooperation with the Government in disclosing the violation.
[(d) Payment of Penalties.--The payment of any penalty
imposed pursuant to subsection (c) may be made a condition, for
a period not exceeding one year after the imposition of such
penalty, 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 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 one year) that may be imposed upon such person. Such a
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
penalty imposed pursuant to subsection (c), or any amounts
realized from the forefeiture of any property interest or
proceeds pursuant to subsection (g), shall be covered into the
Treasury as a miscellaneous receipt. The head of the department
or agency concerned may, in his discretion, refund any such
penalty imposed pursuant to 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) Actions for Recovery of Penalties.--In the event of
the failure of any person to pay a penalty imposed pursuant to
subsection (c) a civil action for the recovery thereof may, in
the discretion of the head of the department or agency
concerned, be brought in the name of the United States. In any
such action the court shall determine de novo all issues
necessary to the establishment of liability. Except as provided
in this subsection and in subsection (d), no such liabilty
shall be asserted, claimed, or recovered upon by the United
States in any way unless it has previously been reduced to
judgment.
[(g) Forfeiture of Property Interest and Proceeds.--(1) Any
person who is convicted under subsection (a) or (b) of a
violation of an export control imposed under section 5 of this
Act (or any regulation, order, or license issued with respect
to such control) 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 goods 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) 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 section 1963
of title 18, United States Code.
[(h) Prior Convictions.--(1) No person convicted of a
violation of this Act (or any regulation, license, or order
issued under this Act), any regulation, license, or order
issued under the International Emergency Economic Powers Act,
section 793, 794, or 798 of title 18, United States Code,
section 4(b) on the Internal Security Act of 1950 (50 U.S.C.
783(b)), or section 38 of the Arms Export Control Act (22
U.S.C. 2778) shall be eligible, at the discretion of the
Secretary, to apply for or use any export license under this
Act for a period of up to 10 years from the date of the
conviction. The Secretary may revoke any export license under
this Act in which such person has an interest at the time of
the conviction.
[(2) 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 law set forth in
paragraph (1), upon a showing of such relationship with the
convicted party, and subject to the procedures set forth in
section 13(c) of this Act.
[(i) Other Authorities.--Nothing in subsection (c), (d),
(f), (g), or (h) limits--
[(1) the availability of other administrative or
judicial remedies with respect to violations of this
Act, or any regulation, order, or license issued under
this Act;
[(2) the authority to compromise and settle,
administrative proceedings brought with respect to
violations of this Act, or any regulation, order, or
license issued under this Act; 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)).
[multilateral export control violations
[Sec. 11A. (a) Determination by the President.--The
President, subject to subsection (c), shall apply sanctions
under subsection (b) for a period of not less than 2 years and
not more than 5 years, if the President determines that--
[(1) a foreign person has violated any regulation
issued by a country to control exports for national
security purposes pursuant to the agreement of the
group known as the Coordinating Committee, and
[(2) such violation has resulted in substantial
enhancement of Soviet and East bloc capabilities in
submarine or antisubmarine warfare, ballistic or
antiballistic missile technology, strategic aircraft,
command, control, communications and intelligence, or
other critical technologies as determined by the
President, on the advice of the National Security
Council, to represent a serious adverse impact on the
strategic balance of forces.
The President shall notify the Congress of each action taken
under this section. This section, except subsections (h) and
(j), applies only to violations that occur after the date of
the enactment of the Export Enhancement Act of 1988.
[(b) Sanctions.--The sanctions referred to in subsection
(a) shall apply to the foreign person committing the violation,
as well as to any parent, affiliate, subsidiary, and successor
entity of the foreign person, and, except as provided in
subsection (c), are as follows:
[(1) a prohibition on contracting with, and
procurement of products and services from, a sanctioned
person, by any department, agency, or instrumentality
of the United States Government, and
[(2) a prohibition on importation into the United
States of all products produced by a sanctioned person.
[(c) Exceptions.--The President shall not apply sanctions
under this section--
[(1) in the case of procurement of defense articles
or defense services--
[(A) under existing contracts or
subcontracts, including the exercise of options
for production quantities to satisfy United
States operational military requirements;
[(B) if the President determines that the
foreign person or other entity to which the
sanctions would otherwise be applied is a sole
source supplier of essential defense articles
or services and no alternative supplier can be
identified; or
[(C) if the President determines that such
articles or services are essential to the
national security under defense coproduction
agreements; or
[(2) to--
[(A) products or services provided under
contracts or other binding agreements (as such
terms are defined by the President in
regulations) entered into before the date on
which the President notifies the Congress of
the intention to impose the sanctions;
[(B) spare parts;
[(C) component parts, but not finished
products, essential to United States products
or production;
[(D) routine servicing and maintenance of
products; or
[(E) information and technology.
[(d) Exclusion.--The President shall not apply sanctions
under this section to a parent, affiliate, subsidiary, and
successor entity of a foreign person if the President
determines that--
[(1) the parent, affiliate, subsidiary, or
successor entity (as the case may be) has not knowingly
violated the export control regulation violated by the
foreign person, and
[(2) the government of the country with
jurisdiction over the parent, affiliate, subsidiary, or
successor entity had in effect, at the time of the
violation by the foreign person, an effective export
control system consistent with principles agreed to in
the Coordinating Committee, including the following:
[(A) national laws providing appropriate
civil and criminal penalties and statutes of
limitations sufficient to deter potential
violations;
[(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 goods
and technology; and
[(E) procedures for the coordination and
exchange of information concerning violations
of the agreement of the Coordinating Committee.
[(e) Definitions.--For purposes of this section--
[(1) the term ``component part'' means any article
which is not usable for its intended functions without
being imbedded in or integrated into any other product
and which, if used in production of a finished product,
would be substantially transformed in that process;
[(2) the term ``finished product'' means any
article which is usable for its intended functions
without being imbedded or integrated into any other
product, but in no case shall such term be deemed to
include an article produced by a person other than a
sanctioned person that contains parts or components of
the sanctioned person if the parts or components have
been substantially transformed during production of the
finished product; and
[(3) the term ``sanctioned person'' means a foreign
person, and any parent, affiliate, subsidiary, or
successor entity of the foreign person, upon whom
sanctions have been imposed under this section.
[(f) Subsequent Modifications of Sanctions.--The President
may, after consultation with the Congress, limit the scope of
sanctions applied to a parent, affiliate, subsidiary, or
successor entity of the foreign person determined to have
committed the violation on account of which the sanctions were
imposed if the President determines that--
[(1) the parent, affiliate, subsidiary, or
successor entity (as the case may be) has not, on the
basis of available evidence, itself violated the export
control regulation involved, either directly or through
a course of conduct;
[(2) the government with jurisdiction over the
parent, affiliate, subsidiary, or successor entity has
improved its export control system as measured by the
criteria set forth in subsection (d)(2);
[(3) the parent, affiliate, subsidiary, or
successor entity, has instituted improvements in
internal controls sufficient to detect and prevent
violations of the export control regime implemented
under paragraph (2); and
[(4) the impact of the sanctions imposed on the
parent, affiliate, subsidiary, or successor entity is
proportionate to the increased defense expenditures
imposed on the United States.
Notwithstanding the preceding sentence, the President may not
limit the scope of the sanction referred to in subsection
(b)(1) with respect to the parent of the foreign person
determined to have committed the violation, until that sanction
has been in effect for at least 2 years.
[(g) Reports to Congress.--The President shall include in
the annual report submitted under section 14, a report on the
status of any sanctions imposed under this section, including
any exceptions, exclusions, or modifications of sanctions that
have been applied under subsection (c), (d), or (f).
[(h) Discretionary Imposition of Sanctions.--If the
President determines that a foreign person has violated a
regulation issued by a country to control exports for national
security purposes pursuant to the agreement of the group known
as the Coordinating Committee, but in a case in which
subsection (a)(2) may not apply, the President may apply the
sanctions referred to in subsection (b) against that foreign
person for a period of not more than 5 years.
[(i) Compensation for Diversion of Militarily Critical
Technologies to Controlled Countries.--(1) In cases in which
sanctions have been applied against a foreign person under
subsection (a), the President shall initiate discussions with
the foreign person and the government with jurisdiction over
that foreign person regarding compensation on the part of the
foreign person in an amount proportionate to the costs of
research and development and procurement of new defensive
systems by the United States and the allies of the United
States to counteract the effect of the technological advance
achieved by the Soviet Union as a result of the violation by
that foreign person.
[(2) The President shall, at the time that discussions are
initiated under paragraph (1), report to the Congress that such
discussions are being undertaken, and shall report to the
Congress the outcome of those discussions.
[(j) Other Actions by the President.--Upon making a
determination under subsection (a) or (h), the President
shall--
[(1) initiate consultations with the foreign
government with jurisdiction over the foreign person
who committed the violation involved, in order to seek
prompt remedial action by that government;
[(2) initiate discussions with the governments
participating in the Coordinating Committee regarding
the violation and means to ensure that similar
violations do not occur; and
[(3) consult with and report to the Congress on the
nature of the violation and the actions the President
proposes to take, or has taken, to rectify the
situation.
[(k) Damages for Certain Violations.--(1) In any case in
which the President makes a determination under subsection (a),
the Secretary of Defense shall determine the costs of restoring
the military preparedness of the United States on account of
the violation involved. The Secretary of Defense shall notify
the Attorney General of his determination, and the Attorney
General may bring an action for damages, in any appropriate
district court of the United States, to recover such costs
against the person who committed the violation, any person that
is owned or controlled by the person who committed the
violation, and any person who owns and controls the person who
committed the violation.
[(3) The total amount awarded in any case brought under
paragraph (2) shall be determined by the court in light of the
facts and circumstances, but shall not exceed the amount of the
net loss to the national security of the United States. An
action under this subsection shall be commenced not later than
3 years after the violation occurs, or one year after the
violation is discovered, whichever is later.
[(l) Definition.--For purposes of this section, the term
``foreign person'' means any person other than a United States
person.
[missile proliferation control violations
[Sec. 11B. (a) Violations by United States Persons.--
[(1) Sanctions.--(A) 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, section 5 or 6 of this
Act, or any regulations or orders issued under
any such provisions,
[(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,
then the President shall impose the applicable
sanctions described in subparagraph (B).
[(B) The sanctions which apply to a United States
person under subparagraph (A) 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
Act.
[(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 Act.
[(2) Discretionary sanctions.--In the case of any
determination referred to in paragraph (1), the
Secretary may pursue any other appropriate penalties
under section 11 of this Act.
[(3) Waiver.--The President may waive the
imposition of sanctions under paragraph (1) on a person
with respect to a product or service if the President
certifies to the Congress that--
[(A) the product or service is essential to
the national security of the United States; and
[(B) 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.
[(b) Transfers of Missile Equipment or Technology by
Foreign Persons.--
[(1) Sanctions.--(A) Subject to paragraphs (3)
through (7), 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 MTCR adherent and would
be, if it were United States-origin equipment
or technology, subject to the jurisdiction of
the United States under this Act,
[(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 subparagraph (B).
[(B) The sanctions which apply to a foreign person
under subparagraph (A) 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 Act.
[(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
Act.
[(iii) If, in addition to actions taken
under clauses (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 MTCR adherent, 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.
[(2) Inapplicability with respect to mtcr
adherents.--Paragraph (1) does not apply with respect
to--
[(A) any export, transfer, or trading
activity that is authorized by the laws of an
MTCR adherent, if such authorization is not
obtained by misrepresentation or fraud; or
[(B) any export, transfer, or trade of an
item to an end user in a country that is an
MTCR adherent.
[(3) Effect of enforcement actions by mtcr
adherents.--Sanctions set forth in paragraph (1) may
not be imposed under this subsection on a person with
respect to acts described in such paragraph or, if such
sanctions are in effect against a person on account of
such acts, such sanctions shall be terminated, if an
MTCR adherent is taking judicial or other enforcement
action against that person with respect to such acts,
or that person has been found by the government of an
MTCR adherent to be innocent of wrongdoing with respect
to such acts.
[(4) 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 subsection.
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.
[(5) Waiver and report to congress.--(A) In any
case other than one in which an advisory opinion has
been issued under paragraph (4) stating that a proposed
activity would not subject a person to sanctions under
this subsection, the President may waive the
application of paragraph (1) to a foreign person if the
President determines that such waiver is essential to
the national security of the United States.
[(B) In the event that the President decides to
apply the waiver described in subparagraph (A), 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.
[(6) Additional waiver.--The President may waive
the imposition of sanctions under paragraph (1) on a
person with respect to a product or service if the
President certifies to the Congress that--
[(A) the product or service is essential to
the national security of the United States; and
[(B) 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.
[(7) Exceptions.--The President shall not apply the
sanction under this subsection prohibiting the
importation of the products of a foreign person--
[(A) 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 or NATO
Programs of Cooperation;
[(B) to products or services provided under
contracts entered into before the date on which
the President publishes his intention to impose
the sanctions; or
[(C) 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.
[(c) Definitions.--For purposes of this section and
subsection (k) and (l) of section 6--
[(1) the term ``missile'' means a category I system
as defined in the MTCR Annex, and any other unmanned
delivery system of similar capability, as well as the
specially designed production facilities for these
systems;
[(2) the term ``Missile Technology Control Regime''
or ``MTCR'' means the policy statement, 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-
relevant transfers based on the MTCR Annex, and any
amendments thereto;
[(3) the term ``MTCR adherent'' means a country
that participates in the MTCR or that, pursuant to an
international understanding to which the United States
is a party, controls MTCR equipment or technology in
accordance with the criteria and standards set forth in
the MTCR;
[(4) the term ``MTCR Annex'' means the Guidelines
and Equipment and Technology Annex of the MTCR, and any
amendments thereto;
[(5) 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;
[(6) the term ``foreign person'' means any person
other than a United States person;
[(7)(A) 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
[(B) in the case of countries where it may be
impossible to identify a specific governmental entity
referred to in subparagraph (A), 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
[(8) 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.
[chemical and biological weapons proliferation sanctions
[Sec. 11C. (a) Imposition of Sanctions.--
[(1) Determination by the president.--Except as
provided in subsection (b)(2), the President shall
impose both of the sanctions described in subsection
(c) if the President determines that a foreign person,
on or after the date of the enactment of this section,
has knowingly and materially contributed--
[(A) through the export from the United
States of any goods or technology that are
subject to the jurisdiction of the United
States under this Act, or
[(B) 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 Act,
to the efforts by any foreign country, project, or
entity described in paragraph (2) to use, develop,
produce, stockpile, or otherwise acquire chemical or
biological weapons.
[(2) Countries, projects, or entities receiving
assistance.--Paragraph (1) applies in the case of--
[(A) 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 clause (i) or
(ii);
[(B) any foreign country whose government
is determined for purposes of section 6(j) of
this Act to be a government that has repeatedly
provided support for acts of international
terrorism; or
[(C) any other foreign country, project, or
entity designated by the President for purposes
of this section.
[(3) Persons against which sanctions are to be
imposed.--Sanctions shall be imposed pursuant to
paragraph (1) on--
[(A) the foreign person with respect to
which the President makes the determination
described in that paragraph;
[(B) any successor entity to that foreign
person;
[(C) 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
[(D) 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.
[(b) Consultations With and Actions by Foreign Government
of Jurisdiction.--
[(1) Consultations.--If the President makes the
determinations described in subsection (a)(1) 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 section.
[(2) Actions by government of jurisdiction.--In
order to pursue such consultations with that
government, the President may delay imposition of
sanctions pursuant to this section 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 subsection (a)(1). 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.
[(3) Report to congress.--The President shall
report to the Congress, not later than 90 days after
making a determination under subsection (a)(1), on the
status of consultations with the appropriate government
under this subsection, and the basis for any
determination under paragraph (2) of this subsection
that such government has taken specific corrective
actions.
[(c) Sanctions.--
[(1) Description of sanctions.--The sanctions to be
imposed pursuant to subsection (a)(1) are, except as
provided in paragraph (2) of this subsection, the
following:
[(A) 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
subsection (a)(3).
[(B) Import sanctions.--The importation
into the United States of products produced by
any person described in subsection (a)(3) shall
be prohibited.
[(2) Exceptions.--The President shall not be
required to apply or maintain sanctions under this
section--
[(A) 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;
[(B) to products or services provided under
contracts entered into before the date on which
the President publishes his intention to impose
sanctions;
[(C) 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;
[(D) to information and technology
essential to United States products or
production; or
[(E) to medical or other humanitarian
items.
[(d) Termination of Sanctions.--The sanctions imposed
pursuant to this section 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 subsection (a)(1) 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 subsection.
[(e) Waiver.--
[(1) Criterion for waiver.--The President may waive
the application of any sanction imposed on any person
pursuant to this section, 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.
[(2) Notification of and report to congress.--If
the President decides to exercise the waiver authority
provided in paragraph (1), 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.
[(f) Definition of Foreign Person.--For the purposes of
this section, the term ``foreign person'' means--
[(1) an individual who is not a citizen of the
United States or an alien admitted for permanent
residence to the United States; or
[(2) 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.
[enforcement
[Sec. 12. (a) General Authority.--(1) To the extent
necessary or appropriate to the enforcement of this Act or to
the imposition of any penalty, forfeiture, or liability arising
under the Export Control Act of 1949 or the Export
Administration Act of 1969, the head of any department or
agency exercising any function thereunder (and officers or
employees of such department or agency specifically designated
by the head thereof) may make such investigations within the
United States, and the Commissioner of Customs (and officers or
employees of the United States Customs Service specifically
designated by the Commissioner) may make such investigations
outside of the United States, and the head of such department
of agency (and such officers or employees) may obtain such
information from, require such reports or the keeping of such
records by, make such inspection of the books, records, and
other writings, premises, or property of, and take the sworn
testimony of, any person. In addition, such officers or
employees may administer oaths or affirmations, and may be
subpena require any person to appear and testify or to appear
and produce books, records, and other writings, or both, and in
the case of contumacy by, or refusal to obey a subpena issued
to, any such person, a district court of the United States,
after notice to any such person and hearing, shall have
jurisdiction to issue an order requiring such person to appear
and give testimony or to appear and produce books, records, and
other writings, or both, and any failure to obey such order of
the court may be punished by such court as a contempt thereof.
In addition to the authority conferred by this paragraph, the
Secretary (and officers or employees of the Department of
Commerce designated by the Secretary) may conduct, outside the
United States, pre-license investigations and post-shipment
verifications of items licensed for export, and investigations
in the enforcement of section 8 of this Act.
[(2)(A) Subject to subparagraph (B) of this paragraph, the
United States Customs Service is authorized, in the enforcement
of this Act, to search, detain (after search), and seize goods
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.
[(B) An officer of the United States Customs Service may do
the following in carrying out enforcement authority under this
Act:
[(i) Stop, search, and examine a vehicle, vessel,
aircraft, or person on which or whom such officer has
reasonable cause to suspect there are any goods or
technology that has been, is being, or is about to be
exported from the United States in violation of this
Act.
[(ii) Search any package or container in which such
officer has reasonable cause to suspect there are any
goods or technology that has been, is being, or is
about to be exported from the United States in
violation of this Act.
[(iii) Detain (after search) or seize and secure
for trial any goods or technology on or about such
vehicle, vessel, aircraft, or person, or in such
package or container, if such officer has probable
cause to believe the goods or technology has been, is
being, or is about to be exported from the United
States in violation of this Act.
[(iv) Make arrests without warrant for any
violation of this Act committed in his or her presence
or view or if the officer has probable cause to believe
that the person to be arrested has committed or is
committing such a violation.
The arrest authority conferred by clause (iv) of this
subparagraph is in addition to any arrest authority under other
laws. The Customs Service may not detain for more than 20 days
any shipment of goods or technology eligible for export under a
general license under section 4(a)(3). In a case in which such
detention is on account of a disagreement between the Secretary
and the head of any other department or agency with export
license authority under other provisions of law concerning the
export license requirements for such goods or technology, such
disagreement shall be resolved within that 20-day period. At
the end of that 20-day period, the Customs Service shall either
release the goods or technology, or seize the goods or
technology as authorized by other provisions of law.
[(3)(A) Subject to subparagraph (B) of this paragraph, the
Secretary shall have the responsibility for the enforcement of
section 8 of this Act and, in the enforcement of the other
provisions of this Act, the Secretary is authorized to search,
detain (after search), and seize goods or technology at those
places within the United States other than those ports
specified in paragraph (2)(A) of this subsection. The search,
detention (after search), or seizure of goods or technology at
those ports and places specified in paragraph (2)(A) may be
conducted by officers or employees of the Department of
Commerce designated by the Secretary with the concurrence of
the Commissioner of Customs or a person designated by the
Commissioner.
[(B) The Secretary may designate any employee of the Office
of Export Enforcement of the Department of Commerce to do the
following in carrying out enforcement authority under this Act:
[(i) Execute any warrant or other process issued by
a court or officer of competent jurisdiction with
respect to the enforcement of the provisions of this
Act.
[(ii) Make arrests without warrant for any
violation of this Act committed in his or her presence
or view, or if the officer or employee has probable
cause to believe that the person to be arrested has
committed or is committing such a violation.
[(iii) Carry firearms in carrying out any activity
described in clause (i) or (ii).
[(4) The authorities first conferred by the Export
Administration Amendments Act of 1985 under paragraph (3) shall
be exercised pursuant to guidelines approved by the Attorney
General. Such guidelines shall be issued not later than 120
days after the date of the enactment of the Export
Administration Amendments Act of 1985.
[(5) All cases involving violations of this Act shall be
referred to the Secretary for purposes of determining civil
penalties and administrative sanctions under section 11(c) of
this Act, or to the Attorney General for criminal action in
accordance with this Act.
[(6) Nothwithstanding any other provision of law, the
United States Customs Service may expend in the enforcement of
export controls under this Act not more than $12,000,000 in the
fiscal year 1985 and not more than $14,000,000 in the fiscal
year 1986.
[(7) Not later than 90 days after the date of the enactment
of the Export Administration Amendments Act of 1985, the
Secretary, with the concurrence of the Secretary of the
Treasury, shall publish in the Federal Register procedures
setting forth, in accordance with this subsection, the
responsibilities of the Department of Commerce and the United
States Customs Service in the enforcement of this Act. In
addition, the Secretary, with the concurrence of the Secretary
of the Treasury, may publish procedures for the sharing of
information in accordance with subsection (c)(3) of this
section, and procedures for the submission to the appropriate
departments and agencies by private persons of information
relating to the enforcement of this Act.
[(8) For purposes of this section, a reference to the
enforcement of this Act or to a violation of this Act includes
a reference to the enforcement or a violation of any
regulation, order, or license issued under this Act.
[(b) Immunity.--No person shall be excused from complying
with any requirements under this section because of his
privilege against self-incrimination, but the immunity
provisions of section 6002 of title 18, United States Code,
shall apply with respect to any individual who specifically
claims such privilege.
[(c) Confidentiality.--(1) Except as otherwise provided by
the third sentence of section 8(b)(2) and by section
11(c)(2)(C) of this Act, information obtained under this Act on
or before June 30, 1980, which is deemed confidential,
including Shippers' Export Declarations, or with reference to
which a request for confidential treatment is made by the
person furnishing such information, shall be exempt from
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. Information obtained under
this Act after June 30, 1980, may be withheld only to the
extent permitted by statute, except that information obtained
for the purpose of consideration of, or concerning, license
applications under this Act shall be withheld from public
disclosure unless the release of such information is determined
by the Secretary to be in the national interest. Enactment of
this subsection shall not affect any judicial proceeding
commenced under section 552 of title 5, United States Code, to
obtain access to boycott reports submitted prior to October 31,
1976, which was pending on May 15, 1979; but such proceeding
shall be continued as if this Act had not been enacted.
[(2) Nothing in this Act shall be construed as authorizing
the withholding of information from the Congress or from the
General Accounting Office. All information at any time under
this Act or previous Acts regarding the control of exports,
including any report or license application required under this
Act, shall be made available to any committee or subcommittee
of Congress of appropriate jurisdiction upon request of the
chairman or ranking minority member of such committee or
subcommittee. No such committee or subcommittee, or member
thereof, shall disclose any information obtained under this Act
or previous Acts regarding the control of exports which is
submitted on a confidential basis unless the full committee
determines that the withholding of that information is contrary
to the national interest. Notwithstanding paragraph (1) of this
subsection, information referred to in the second sentence of
this paragraph 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 313 of the Budget and Accounting Act,
1921, be made available only by that agency, upon request, to
the Comptroller General of the United States or to any officer
or employee of the General Accounting Office who is authorized
by the Comptroller General to have access to such information.
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) Any department or agency which obtains information
which is relevant to the enforcement of this Act, including
information pertaining to any investigation, shall furnish such
information to each department or agency with enforcement
responsibilities under this Act to the extent consistent with
the protection of intelligence, counterintelligence, and law
enforcement sources, methods, and activities. The provisions of
this paragraph shall not apply to information subject to the
restrictions set forth in section 9 of title 13, United States
Code; and return information, as defined in subsection (b) of
section 6103 of the Internal Revenue Code of 1954, may be
disclosed only as authorized by such section. The Secretary and
the Commissioner of Customs, upon request, shall exchange any
licensing and enforcement information with each other which is
necessary to facilitate enforcement efforts and effective
license decisions. The Secretary, the Attorney General, and the
Commissioner of Customs shall consult on a continuing basis
with one another and with the heads of other departments and
agencies which obtain information subject to this paragraph, in
order to facilitate the exchange of such information.
[(d) Reporting Requirements.--In the administration of this
Act, reporting requirements shall be so designed as to reduce
the cost of reporting, recordkeeping, and export documentation
required under this Act to the extent feasible consistent with
effective enforcement and compilation of useful trade
statistics. Reporting, recordkeeping, and export documentation
requirements shall be periodically reviewed and revised in the
light of developments in the field of information technology.
[(e) Simplification of Regulations.--The Secretary, in
consultation with appropriate United States Government
departments and agencies and with appropriate technical
advisory committees established under section 5(h), shall
review the regulations issued under this Act and the commodity
control list in order to determine how compliance with the
provisions of this Act can be facilitated by simplifying such
regulations, by simplifying or clarifying such list, or by any
other means.
[administrative procedure and judicial review
[Sec. 13. (a) Exemption.--Except as provided in section
11(c)(2) and subsection (c) of this section, the functions
exercised under this Act are excluded from the operation of
sections 551, 553 through 559, and 701 through 706 of title 5,
United States Code.
[(b) Public Participation.--It is the intent of the
Congress that, to the extent practicable, all regulations
imposing controls on exports under this Act be issued in
proposed form with meaningful opportunity for public comment
before taking effect. In cases where a regulation imposing
controls under this Act is issued with immediate effect, it is
the intent of the Congress that meaningful opportunity for
public comment also be provided and that the regulation be
reissued in final form after public comments have been fully
considered.
[(c) Procedures Relating to Civil Penalties and
Sanctions.--(1) In any case in which a civil penalty or other
civil sanction (other than a temporary denial order or a
penalty or sanction for a violation of section 8) is sought
under section 11 of this Act, the charged party is entitled to
receive a formal complaint specifying the charges and, at his
or her request, to contest the charges in a hearing before an
administrative law judge. Subject to the provisions of this
subsection, any such hearing shall be conducted in accordance
with sections 556 and 557 of title 5, United States Code. With
the approval of the administrative law judge, the Government
may present evidence in camera in the presence of the charged
party or his or her representative. After the hearing, the
administrative law judge shall make findings of fact and
conclusions of law in a written decision, which shall be
referred to the Secretary. The Secretary shall, in a written
order, affirm, modify, or vacate the decision of the
administrative law judge within 30 days after receiving the
decison. The order of the Secretary shall be final and is not
subject to judicial review, except as provided in paragraph
(3).
[(2) The proceedings described in paragraph (1) shall be
concluded within a period of 1 year after the complaint is
submitted, unless the administrative law judge extends such
period for good cause shown.
[(3) The order of the Secretary under paragraph (1) shall
be final, except that the charged party may, within 15 days
after the order is issued, appeal the order in the United
States Court of Appeals for the District of Columbia Circuit,
which shall have jurisdiction of the appeal. The court may,
while the appeal is pending, stay the order of the Secretary.
The court may review only those issues necessary to determine
liability for the civil penalty or other sanction involved. In
an appeal filed under this paragraph, the court shall set aside
any finding of fact for which the court finds there is not
substantial evidence on the record and any conclusion of law
which the court finds to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
[(4) An administrative law judge referred to in this
subsection shall be appointed by the Secretary from among those
considered qualified for selection and appointment under
section 3105 of title 5, United States Code. Any person who,
for at least 2 of the 10 years immediately preceding the date
of the enactment of the Export Administration Amendments Act of
1985, has served as a hearing commissioner of the Department of
Commerce shall be included among these considered as qualified
for selection and appointment to such position.
[(d) Imposition of Temporary Denial Orders.--(1) In any
case in which it is necessary, in the public interest, to
prevent an imminent violation of this Act or any regulation,
order, or license issued under this Act, the Secretary may,
without a hearing, issue an order temporarily denying United
States export privileges (hereinafter in this subsection
referred to as a ``temporary denial order'') to a person. A
temporary denial order may be effective no longer than 180 days
unless renewed in writing by the Secretary for additional 180-
day periods in order to prevent such an imminent violation,
except that a temporary denial order may be renewed only after
notice and an opportunity for a hearing is provided.
[(2) A temporary denial order shall define the imminent
violation and state why the temporary denial order was granted
without a hearing. The person or persons subject to the
issuance or renewal of a temporary denial order may file an
appeal of the issuance or renewal of the temporary denial order
with an administrative law judge who shall, within 10 working
days after the appeal is filed, recommend that the temporary
denial order be affirmed, modified, or vacated. Parties may
submit briefs and other material to the judge. The
recommendation of the administrative law judge shall be
submitted to the Secretary who shall either accept, reject, or
modify the recommendation by written order within 5 working
days after receiving the recommendation. The written order of
the Secretary under the preceding sentence shall be final and
is not subject to judicial review, except as provided in
paragraph (3). The temporary denial order shall be affirmed
only if it is reasonable to believe that the order is required
in the public interest to prevent an imminent violation of this
Act or any regulation, order, or license issued under this Act.
All materials submitted to the administrative law judge and the
Secretary shall constitute the administrative record for
purposes of review by the courts.
[(3) An order of the Secretary affirming, in whole or in
part, the issuance 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 standard for issuing the temporary denial
order has been met. 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.
[(e) Appeals From License Denials.--A determination of the
Secretary, under section 10(f) of this Act, to deny a license
may be appealed by the applicant to an administrative law judge
who shall have the authority to conduct proceedings to
determine only whether the item sought to be exported is in
fact on the control list. Such proceedings shall be conducted
within 90 days after the appeal is filed. Any determination by
an administrative law judge under this subsection and all
materials filed before such judge in the proceedings shall be
reviewed by the Secretary, who shall either affirm or vacate
the determination in a written decision within 30 days after
receiving the determination. The Secretary's written decision
shall be final and is not subject to judicial review. Subject
to the limitations provided in section 12(c) of this Act, the
Secretary's decision shall be published in the Federal
Register.
[annual report
[Sec. 14. (a) Contents.--Not later than December 31 of each
year, the Secretary shall submit to the Congress a report on
the administration of this Act during the preceding fiscal
year. All agencies shall cooperate fully with the Secretary in
providing information for such report. Such report shall
include detailed information with respect to--
[(1) the implementation of the policies set forth
in section 3;
[(2) general licensing activities under sections 5,
6, and 7, and any changes in the exercise of the
authorities contained in sections 5(a), 6(a), and 7(a);
[(3) the results of the review of United States
policy toward individual countries pursuant to section
5(b);
[(4) the results, in as much detail as may be
included consistent with the national security and the
need to maintain the confidentiality of proprietary
information, of the actions, including reviews and
revisions of export controls maintained for national
security purposes, required by section 5(c)(3);
[(5) actions taken to carry our section 5(d);
[(6) changes in categories of items under export
control referred to in section 5(e);
[(7) determinations of foreign availability made
under section 5(f), the citeria used to make such
determinations, the removal of any export controls
under such section, and any evidence demonstrating a
need to impose export controls for national security
purposes notwithstanding foreign availability;
[(8) actions taken in compliance with section
5(f)(6);
[(9) the operation of the indexing system under
section 5(g);
[(10) consultations with the technical advisory
committees established pursuant to section 5(h), the
use made of the advice rendered by such committees, and
the contributions of such committees toward
implementing the policies set forth in this Act;
[(11) the effectiveness of export controls imposed
under section 6 in furthering the foreign policy of the
United States;
[(12) export controls and monitoring under section
7;
[(13) the information contained in the reports
required by section 7(b)(2), together with an analysis
of--
[(A) the impact on the economy and world
trade of shortages or increased prices for
commodities subject to monitoring under this
Act or section 812 of the Agricultural Act of
1970;
[(B) the worldwide supply of such
commodities; and
[(C) actions being taken by other countries
in response to such shortages or increased
prices;
[(14) actions taken by the President and the
Secretary to carry out the antiboycott policies set
forth in section 3(5) of this Act;
[(15) organizational and procedural changes
undertaken in furtherance of the policies set forth in
this Act, including changes to increase the efficiency
of the export licensing process and to fulfill the
requirements of section 10, including an accounting of
appeals received, court orders issued, and actions
taken pursuant thereto under subsection (j) of such
section;
[(16) delegations of authority by the President as
provided in section 4(e) of this Act;
[(17) efforts to keep the business sector of the
Nation informed with respect to policies and procedures
adopted under this Act;
[(18) any reviews undertaken in furtherance of the
policies of this Act, including the results of the
review required by section 12(d), and any action taken,
on the basis of the review required by section 12(e),
to simplify regulations issued under this Act;
[(19) violations under section 11 and enforcement
activities under section 12; and
[(20) the issuance of regulations under the
authority of this Act, including an explanation of each
case in which regulations were not issued in accordance
with the first sentence of section 13(b).
[(b) Report on Certain Export Controls.--To the extent that
the President determines that the policies set forth in section
3 of this Act require the control of the export of goods and
technology other than those subject to multilateral controls,
or require more stringent controls than the multilateral
controls, the President shall include in each annual report the
reasons for the need to impose, or to continue to impose, such
controls and the estimated domestic economic impact on the
various industries affected by such controls.
[(c) Report on Negotiations.--The President shall include
in each annual report a detailed report on the progress of the
negotiations required by section 5(i), until such negotiations
are concluded.
[(d) Report on Exports to Controlled Countries.--The
Secretary shall include in each annual report a detailed report
which lists every license for exports to controlled countries
which was approved under this Act during the preceding fiscal
year. Such report shall specify to whom the license was
granted, the type of goods or technology exported, and the
country receiving the goods or technology. The information
required by this subsection shall be subject to the provisions
of section 12(c) of this Act.
[(e) Report on Domestic Economic Impact of Exports to
Controlled Countries.--The Secretary shall include in each
annual report a detailed description of the extent of injury to
United States industry and the extent of job displacement
caused by United States exports of goods and technology to
controlled countries. The annual report shall also include a
full analysis of the consequences of exports of turnkey plants
and manufacturing facilities to controlled countries which are
used by such countries to produce goods for export to the
United States or to compete with United States products in
export markets.
[(f) Annual Report of the President.--The President shall
submit an annual report to the Congress estimating the
additional defense expenditures of the United States arising
from illegal technology transfers, focusing on estimated
defense costs arising from illegal technology transfers that
resulted in a serious adverse impact on the strategic balance
of forces. These estimates shall be based on assessment by the
intelligence community of any technology transfers that
resulted in such serious adverse impact. This report may have a
classified annex covering any information of a sensitive
nature.
[administrative and regulatory authority
[Sec. 15. (a) Under Secretary of Commerce.--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 Act and such other statutes that relate to
national security which were delegated to the office of the
Assistant Secretary of Commerce for Trade Administration before
the date of the enactment of the Export Administration
Amendments Act of 1985, and such other functions under this Act
which were delegated to such office before such date of
enactment, 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.
[(b) Issuance of Regulations.--The President and the
Secretary may issue such regulations as are necessary to carry
out the provisions of this Act. Any such regulations issued to
carry out the provisions of section 5(a), 6(a), 7(a), or (8)(b)
may apply to the financing, transporting, or other servicing of
exports and the participation therein by any person. Any such
regulations the purpose of which is to carry out the provisions
of section 5, or of section 4(a) for the purpose of
administering the provisions of section 5, may be issued only
after the regulations are submitted for review to the Secretary
of Defense, the Secretary of State, such other departments and
agencies as the Secretary considers appropriate, and the
appropriate technical advisory committee. The preceding
sentence does not require the concurrence or approval of any
official, department, or agency to which such regulations are
submitted.
[(c) Amendments to Regulations.--If the Secretary proposes
to amend regulations issued under this Act, the Secretary shall
report to the Committee on Banking, Housing, and Urban Affairs
of the Senate and the Committee on Foreign Affairs of the House
of Representatives on the intent and rationale of such
amendments. Such report shall evaluate the cost and burden to
United States exporters of the proposed amendments in relation
to any enhancement of licensing objectives. The Secretary shall
consult with the technical advisory committees authorized under
section 5(h) of this Act in formulating or amending regulations
issued under this Act. The procedures defined by regulations in
effect on January 1, 1984, with respect to sections 4 and 5 of
this Act, shall remain in effect unless the Secretary
determines, on the basis of substantial and reliable evidence,
that specific change is necessary to enhance the prevention of
diversions of exports which would prove detrimental to the
national security of the United States or to reduce the
licensing and paperwork burden on exporters and their
distributors.
[definitions
[Sec. 16. As used in this Act--
[(1) the term ``person'' includes the singular and
the plural and any individual, partnership,
corporation, or other form of association, including
any government or agency thereof;
[(2) the term ``United States person'' means any
United States 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;
[(3) the term ``good'' means any article, natural
or manmade substance, material, supply or manufactured
product, including inspection and test equipment, and
excluding technical data;
[(4) the term ``technology'' means the information
and knowhow (whether in tangible form, such as models,
prototypes, drawings, sketches, diagrams, blueprints,
or manuals, or in intangible form, such as training or
technical services) that can be used to design,
produce, manufacture, utilize, or reconstruct goods,
including computer software and technical data, but not
the goods themselves;
[(5) the term ``export'' means--
[(A) an actual shipment, transfer, or
tramsmission of goods or technology out of the
United States;
[(B) a transfer of goods or technology in
the United States to an embassy or affiliate of
a controlled country; or
[(C) a transfer to any person of goods or
technology either within the United States or
outside of the United States with the knowledge
or intent that the goods or technology will be
shipped, transferred, or transmitted to an
unauthorized recipient;
[(6) the term ``controlled country'' means a
controlled country under section 5(b)(1) of this Act;
[(7) 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)); and
[(8) the term ``Secretary'' means the Secretary of
Commerce.
[effect on other acts
[Sec. 17. (a) In General.--Except as otherwise provided in
this Act, nothing contained in this Act shall be construed to
modify, repeal, supersede, or otherwise affect the provisions
of any other laws authorizing control over exports of any
commodity.
[(b) Coordination of Controls.--The authority granted to
the President under this Act shall be exercised in such manner
as to achieve effective coordination with the authority
exercised under section 38 of the Arms Export Control Act (22
U.S.C. 2778).
[(c) Civil Aircraft Equipment.--Notwithstanding any other
provision of law, any product (1) which is standard equipment
certified by the Federal Aviation Administration, in civil
aircraft and is an integral part of such aircraft, and (2)
which is to be exported to a country other than a controlled
country, shall be subject to export controls exclusively under
this Act. Any such product shall not be subject to controls
under section 38(b)(2) of the Arms Export Control Act.
[(d) Nonproliferation Controls.--(1) Nothing in section 5
or 6 of this Act shall be construed to supersede the procedures
published by the President pursuant to section 309(c) of the
Nuclear Non-Proliferation Act of 1978.
[(2) With respect to any export license application which,
under the procedures published by the President pursuant to
section 309(c) of the Nuclear Non-Proliferation Act of 1978, is
referred to the Subgroup on Nuclear Export Coordination or
other interagency group, the provisions of section 10 of this
Act shall apply with respect to such license application only
to the extent that they are consistent with such published
procedures, except that if the processing of any such
application under such procedures is not completed within 180
days after the receipt of the application by the Secretary, the
applicant shall have the rights of appeal and court action
provided in section 10(j) of this Act.
[(e) Termination of Other Authority.--On October 1, 1979,
the Mutual Defense Assistance Control Act of 1951 (22 U.S.C.
1611-1613d), is superseded.
[(f) Agricultural Act of 1970.--Nothing in this Act shall
affect the provisions of the last sentence of section 812 of
the Agricultural Act of 1970 (7 U.S.C. 612c-3).
[authorization of appropriations
[Sec. 18. (a) Requirement of Authorizing Legislation.--(1)
Notwithstanding any other provisions of law, money appropriated
to the Department of Commerce for expenses to carry out the
purposes of this Act may be obligated or expended only if--
[(A) the appropriation thereof has been previously
authorized by law enacted on or after the date of the
enactment of the Export Administration Amendments Act
of 1985; or
[(B) the amount of all such obligations and
expenditures does not exceed an amount previously
prescribed by law enacted on or after such date.
[(2) To the extent that legislation enacted after the
making of an appropriation to carry out the purposes of this
Act authorizes the obligation or expenditure thereof, the
limitation contained in paragraph (1) shall have no effect.
[(3) The provisions of this subsection shall not be
superseded except by a provision of law enacted after the date
of the enactment of the Export Administration Amendments Act of
1985 which specifically repeals, modifies, or supersedes the
provisions of this subsection.
[(b) Authorization.--There are authorized to be
appropriated to the Department of Commerce to carry out the
purposes of this Act--
[(1) $42,813,000 for the fiscal year 1993;
[(2) such sums as may be necessary for the fiscal
year 1994; and
[(3) such additional amounts, for each such fiscal
year, as may be necessary for increases in salary, pay,
retirement, other employee benefits authorized by law,
and other nondiscretionary costs.
[effective date
[Sec. 19. (a) Effective Date.--This Act shall take effect
upon the expiration of the Export Administration Act of 1969.
[(b) Issuance of Regulations.--(1) Regulations implementing
the provisions of section 10 of this Act shall be issued and
take effect not later than July 1, 1980.
[(2) Regulations implementing the provisions of section
7(c) of this Act shall be issued and take effect not later than
January 1, 1980.
[termination date
[Sec. 20. The authority granted by this Act terminates on
August 20, 2001.
[savings provisions
[Sec. 21. (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 the Export
Control Act of 1949 or the Export Administration Act of 1969
and which are in effect at the time this Act takes effect shall
continue in effect according to their terms until modified,
superseded, set aside, or revoked under this Act.
[(b) Administrative Proceedings.--This Act shall not apply
to any administrative proceedings commenced or any application
for a license made, under the Export Administration Act of
1969, which is pending at the time this Act takes effect.
[technical amendments
[Sec. 22. (a) Section 38(e) of the Arms Export Control Act
(22 U.S.C. 2778(e)) is amended by striking out ``sections 6(c),
(d), (e), and (f) and 7(a) and (c) of the Export Administration
Act of 1969'' and inserting in lieu thereof ``subsections (c),
(d), (e), and (f) of section 11 of the Export Administration
Act of 1979, and by subsections (a) and (c) of section 12 of
such Act''.
[(b)(1) Section 103(c) of the Energy Policy and
Conservation Act (42 U.S.C. 6212(c)) is amended--
[(A) by striking out ``1969'' and inserting in lieu
thereof ``1979''; and
[(B) by striking out ``(A)'' and inserting in lieu
thereof ``(C)''.
[(2) Section 254(e)(3) of such Act (42 U.S.C. 6274(e)(3))
is amended by striking out ``section 7 of the Export
Administration Act of 1969'' and inserting in lieu thereof
``section 12 of the Export Administration Act of 1979''.
[(c) Section 993(c)(2)(D) of the Internal Revenue Code of
1954 (26 U.S.C. 993(c)(2)(D)) is amended--
[(1) by striking out ``4(b) of the Export
Administration Act of 1969 (50 U.S.C. App. 2403(b))''
and inserting in lieu thereof ``7(a) of the Export
Administration Act of 1979''; and
[(2) by striking out ``(A)'' and inserting in lieu
thereof ``(C)''.
[international investment survey act authorizations
[Sec. 23. (a) Section 9 of the International Investment
Survey Act of 1976 (22 U.S.C. 3108) is amended to read as
follows:
[``authorizations
[``Sec. 9. To carry out this Act, there are authorized to
be appropriated $4,400,000 for the fiscal year ending September
30, 1980, and $4,500,000 for the fiscal year ending September
30, 1981.''.
[(b) The amendment made by subsection (a) shall take effect
on October 1, 1979.
[miscellaneous
[Sec. 24. Section 402 of the Agricultural Trade Development
and Assistance Act of 1954 is amended by inserting ``or beer''
in the second sentence immediately after ``wine''.]
----------
ENERGY POLICY AND CONSERVATION ACT
* * * * * * *
TABLE OF CONTENTS
* * * * * * *
TITLE I--MATTERS RELATED TO DOMESTIC SUPPLY AVAILABILITY
Part A--Domestic Supply
Sec. 101. Coal conversion.
* * * * * * *
[Sec. 103. Domestic use of energy supplies and related materials and
equipment.]
* * * * * * *
TITLE I--MATTERS RELATED TO DOMESTIC SUPPLY AVAILABILITY
Part A--Domestic Supply
* * * * * * *
[domestic use of energy supplies and related materials and equipment
[Sec. 103. (a) The President may, by rule, under such terms
and conditions as he determines to be appropriate and necessary
to carry out the purposes of this Act, restrict exports of--
[(1) coal, petroleum products, natural gas, or
petrochemical feedstocks, and
[(2) supplies of materials or equipment which he
determines to be necessary (A) to maintain or further
exploration, production, refining, or transportation of
energy supplies, or (B) for the construction or
maintenance of energy facilities within the United
States.
[(b)(1) The President shall exercise the authority provided
for in subsection (a) to promulgate a rule prohibiting the
export of crude oil and natural gas produced in the United
States, except that the President may, pursuant to paragraph
(2), exempt from such prohibition such crude oil or natural gas
exports which he determines to be consistent with the national
interest and the purposes of this Act.
[(2) Exemptions from any rule prohibiting crude oil or
natural gas exports shall be included in such rule or provided
for in an amendment thereto and may be based on the purpose for
export, class of seller or purchaser, country of destination,
or any other reasonable classification or basis as the
President determines to be appropriate and consistent with the
national interest and the purposes of this Act.
[(c) In order to implement any rule promulgated under
subsection (a) of this section, the President may request and,
if so, the Secretary of Commerce shall, pursuant to the
procedures established by the Export Administration Act of 1979
(but without regard to the phrase ``and to reduce the serious
inflationary impact of foreign demand'' in section 3(2)(C) of
such Act), impose such restrictions as specified in any rule
under subsection (a) on exports of coal, petroleum products,
natural gas, or petrochemical feedstocks, and such supplies of
materials and equipment.
[(d) Any finding by the President pursuant to subsection
(a) or (b) and any action taken by the Secretary of Commerce
pursuant thereto shall take into account the national interest
as related to the need to leave uninterrupted or unimpaired--
[(1) exchanges in similar quantity for convenience
or increased efficiency of transportation with persons
or the government of a foreign state,
[(2) temporary exports for convenience or increased
efficiency of transportation across parts of an
adjacent foreign state which exports reenter the United
States, and
[(3) the historical trading relations of the United
States with Canada and Mexico.
[(e)(1) The provisions of subchapter II of chapter 5 of
title 5, United States Code, shall apply with respect to the
promulgation of any rule pursuant to this section, except that
the President may waive the requirement pertaining to the
notice of proposed rulemaking or period for comment only if he
finds that compliance with such requirements may seriously
impair his ability to impose effective and timely prohibitions
on exports.
[(2) In the event such notice and comment period are waived
with respect to a rule promulgated under this section, the
President shall afford interested persons an opportunity to
comment on any such rule at the earliest practicable date
thereafter.
[(3) If the President determines to request the Secretary
of Commerce to impose specified restrictions as provided for in
subsection (c), the enforcement and penalty provisions of the
Export Administration Act of 1969 shall apply, in lieu of this
Act, to any violation of such restrictions.
[(f) The President shall submit quarterly reports to the
Congress concerning the administration of this section and any
findings made pursuant to subsection (a) or (b).]
* * * * * * *
TITLE II--STANDBY ENERGY AUTHORITIES
Part B--Authorities With Respect to International Energy Program
international oil allocation
Sec. 251. (a) * * *
* * * * * * *
[(d) Neither section 103 of this Act nor section 28(u) of
the Mineral Leasing Act of 1920 shall preclude the allocation
and export, to other countries in accordance with this section,
of petroleum products produced in the United States.]
* * * * * * *
exchange of information
Sec. 254. (a) * * *
* * * * * * *
(e) The authority under this section to transmit
information shall be subject to any limitations on disclosure
contained in other laws, except that such authority may be
exercised without regard to--
(1) * * *
* * * * * * *
(3) section [12 of the Export Administration Act of
1979] 602 of the Export Administration Act of 2001;
* * * * * * *
----------
SECTION 12 OF THE ALASKA NATURAL GAS TRANPORTATION ACT OF 1976
[export limitations
[Sec. 12. Any exports of Alaska natural gas shall be
subject to the requirements of the Natural Gas Act and section
103 of the Energy Policy and Conservation Act, except that in
addition to the requirements of such Acts, before any Alaska
natural gas in excess of 1,000 Mcf per day may be exported to
any nation other than Canada or Mexico, the President must make
and publish an express finding that such exports will not
diminish the total quantity or quality nor increase the total
price of energy available to the United States.]
----------
SECTION 28 OF THE MINERAL LEASING ACT
grant of authority
Sec. 28. (a) * * *
* * * * * * *
[exports of alaskan north slope oil
[(s)(1) Subject to paragraphs (2) through (6) of this
subsection and notwithstanding any other provision of this Act
or any other provision of law (including any regulation)
applicable to the export of oil transported by pipeline over
right-of-way granted pursuant to section 203 of the Trans-
Alaska Pipeline Authorization Act (43 U.S.C. 1652), such oil
may be exported unless the President finds that exportation of
this oil is not in the national interest. The President shall
make his national interest determination within five months of
the date of enactment of this subsection. In evaluating whether
exports of this oil are in the national interest, the President
shall at a minimum consider--
[(A) whether exports of this oil would diminish the
total quantity or quality of petroleum available to the
United States;
[(B) the results of an appropriate environmental
review, including consideration of appropriate measures
to mitigate any potential adverse effects of exports of
this oil on the environment, which shall be completed
within four months of the date of the enactment of this
subsection; and
[(C) whether exports of this oil are likely to
cause sustained material oil supply shortages or
sustained oil prices significantly above world market
levels that would cause sustained material adverse
employment effects in the United States or that would
cause substantial harm to consumers, including
noncontiguous States and Pacific territories.
If the President determines that exports of this oil are in the
national interest, he may impose such terms and conditions
(other than a volume limitation) as are necessary or
appropriate to ensure that such exports are consistent with the
national interest.
[(2) Except in the case of oil exported to a country with
which the United States entered into a bilateral international
oil supply agreement before November 26, 1979, or to a country
pursuant to the International Emergency Oil Sharing Plan of the
International Energy Agency, any oil transported by pipeline
over right-of-way granted pursuant to section 203 of the Trans-
Alaska Pipeline Authorization Act (43 U.S.C. 1652) shall, when
exported, be transported by a vessel documented under the laws
of the United States and owned by a citizen of the United
States (as determined in accordance with section 2 of the
Shipping Act, 1916 (46 U.S.C. App. 802)).
[(3) Nothing in this subsection shall restrict the
authority of the President under the Constitution, the
International Emergency Economic Powers Act (50 U.S.C. 1701 et
seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.),
or Part B of title II of the Energy Policy and Conservation Act
(42 U.S.C. 6271-76) to prohibit exports.
[(4) The Secretary of Commerce shall issue any rules
necessary for implementation of the President's national
interest determination, including any licensing requirements
and conditions, within 30 days of the date of such
determination by the President. The Secretary of Commerce shall
consult with the Secretary of Energy in administering the
provisions of this subsection.
[(5) If the Secretary of Commerce finds that exporting oil
under authority of this subsection has caused sustained
material oil supply shortages or sustained oil prices
significantly above world market levels and further finds that
these supply shortages or price increases have caused or are
likely to cause sustained material adverse employment effects
in the United States, the Secretary of Commerce, in
consultation with the Secretary of Energy, shall recommend, and
the President may take, appropriate action concerning exports
of this oil, which may include modifying or revoking authority
to export such oil.
[(6) Administrative action under this subsection is not
subject to sections 551 and 553 through 559 of title 5, United
States Code.]
* * * * * * *
[limitations on export
[(u) Any domestically produced crude oil transported by
pipeline over rights-of-way granted pursuant to section 28 of
the Mineral Leasing Act of 1920, except such crude oil which is
either exchanged in similar quantity for convenience or
increased efficiency of transportation with persons or the
government of an adjacent foreign state, or which is
temporarily exported for convenience or increased efficiency of
transportation across parts of an adjacent foreign state and
reenters the United States, shall be subject to all of the
limitations and licensing requirements of the Export
Administration Act of 1979 (50 U.S.C. App. 2401 and following)
and, in addition, before any crude oil subject to this section
may be exported under the limitations and licensing
requirements and penalty and enforcement provisions of the
Export Administration Act of 1979 the President must make and
publish an express finding that such exports will not diminish
the total quantity or quality of petroleum available to the
United States, and are in the national interest and are in
accord with the provisions of the Export Administration Act of
1979: Provided, That the President shall submit reports to the
Congress containing findings made under this section, and after
the date of receipt of such report Congress shall have a period
of sixty calendar days, thirty days of which Congress must have
been in session, to consider whether exports under the terms of
this section are in the national interest. If the Congress
within this time period passes a concurrent resolution of
disapproval stating disagreement with the President's finding
concerning the national interest, further exports made pursuant
to the aforementioned Presidential findings shall cease.]
* * * * * * *
----------
TITLE 10, UNITED STATES CODE
* * * * * * *
Subtitle A--General Military Law
PART I--ORGANIZATION AND GENERAL MILITARY POWERS
* * * * * * *
CHAPTER 3--GENERAL POWERS AND FUNCTIONS
* * * * * * *
Sec. 130. Authority to withhold from public disclosure certain
technical data
(a) Notwithstanding any other provision of law, the
Secretary of Defense may withhold from public disclosure any
technical data with military or space application in the
possession of, or under the control of, the Department of
Defense, if such data may not be exported lawfully outside the
United States without an approval, authorization, or license
under the Export Administration Act of [1979 (50 U.S.C. App.
2401-2420)] 2001 or the Arms Export Control Act (22 U.S.C. 2751
et seq.). However, technical data may not be withheld under
this section if regulations promulgated under either such Act
authorize the export of such data pursuant to a general,
unrestricted license or exemption in such regulations.
* * * * * * *
PART IV--SERVICE, SUPPLY, AND PROCUREMENT
* * * * * * *
CHAPTER 134--MISCELLANEOUS ADMINISTRATIVE PROVISIONS
SUBCHAPTER I--MISCELLANEOUS AUTHORITIES, PROHIBITIONS, AND LIMITATIONS
ON THE USE OF APPROPRIATED FUNDS
Sec. 2249a. Prohibition on providing financial assistance to terrorist
countries
(a) Prohibition.--Funds available to the Department of
Defense may not be obligated or expended to provide financial
assistance to--
(1) any country with respect to which the Secretary
of State has made a determination under section
[6(j)(1)(A) of the Export Administration Act of 1979
(50 U.S.C. App. 2405(j)(1)(A))] 310(a)(1)(A) of the
Export Administration Act of 2001;
* * * * * * *
CHAPTER 137--PROCUREMENT GENERALLY
* * * * * * *
Sec. 2327. Contracts: consideration of national security objectives
(a) * * *
(b) Prohibition on Entering Into Contracts Against the
Interests of the United States.--Except as provided in
subsection (c), the head of an agency may not enter into a
contract with a firm or a subsidiary of a firm if--
(1) a foreign government owns or controls (whether
directly or indirectly) a significant interest in such
firm or subsidiary (or, in the case of a subsidiary, in
the firm that owns the subsidiary); and
(2) such foreign government is the government of a
country that the Secretary of State determines under
section [6(j)(1)(A) of the Export Administration Act of
1979 (50 U.S.C. App. 2405(j)(1)(A))] 310(a)(1)(A) of
the Export Administration Act of 2001 has repeatedly
provided support for acts of international terrorism.
* * * * * * *
CHAPTER 141--MISCELLANEOUS PROCUREMENT PROVISIONS
* * * * * * *
Sec. 2410i. Prohibition on contracting with entities that comply with
the secondary Arab boycott of Israel
(a) Policy.--Under section [3(5)(A) of the Export
Administration Act of 1979 (50 U.S.C. App. 2402(5)(A))] 502(a)
of the Export Administration Act of 2001, it is the policy of
the United States to oppose restrictive trade practices or
boycotts fostered or imposed by foreign countries against other
countries friendly to the United States or against any other
United States person.
* * * * * * *
Subtitle C--Navy and Marine Corps
* * * * * * *
PART IV--GENERAL ADMINISTRATION
* * * * * * *
Sec. 7430. Disposition of products
(a) * * *
* * * * * * *
[(e) Any petroleum produced from the naval petroleum
reserves, except such petroleum which is either exchanged in
similar quantities for convenience or increased efficiency or
transportation with persons or the government of an adjacent
foreign state, or which is temporarily exported for convenience
or increased efficiency of transportation across parts of an
adjacent foreign state and reenters the United States, shall be
subject to all of the limitations and licensing requirements of
the Export Administration Act of 1979 (50 U.S.C. App. 2401 et
seq.) and, in addition, before any petroleum subject to this
section may be exported under the limitations and licensing
requirement and penalty and enforcement provisions of the
Export Administration Act of 1979, the President must make and
publish an express finding that such exports will not diminish
the total quality or quantity of petroleum available to the
United States and that such exports are in the national
interest and are in accord with the Export Administration Act
of 1979.]
* * * * * * *
----------
SECTION 28 OF THE OUTER CONTINENTAL SHELF LANDS ACT
[Sec. 28. Limitation on Export.--(a) Except as provided in
subsection (d) of this section, any oil or gas produced from
the outer Continental Shelf shall be subject to the
requirements and provisions of the Export Administration Act of
1969 (50 App. U.S.C. 2401 et seq.).
[(b) Before any oil or gas subject to this section may be
exported under the requirements and provisions of the Export
Administration Act of 1969, the President shall make and
publish an express finding that such exports will not increase
reliance on imported oil or gas, are in the national interest,
and are in accord with the provisions of the Export
Administration Act of 1969.
[(c) The President shall submit reports to the Congress
containing findings made under this section, and after the date
of receipt of such report Congress shall have a period of sixty
calendar days, thirty days of which Congress must have been in
session, to consider whether exports under the terms of this
section are in the national interest. If the Congress within
such time period passes a concurrent resolution of disapproval
stating disagreement with the President's finding concerning
the national interest, further exports made pursuant to such
Presidential findings shall cease.
[(d) The provisions of this section shall not apply to any
oil or gas which is either exchanged in similar quantity for
convenience or increased efficiency of transportation with
persons or the government of a foreign state, or which is
temporarily exported for convenience or increased efficiency of
transportation across parts of an adjacent foreign state and
reenters the United States, or which is exchanged or exported
pursuant to an existing international agreement.]
----------
ARMS EXPORT CONTROL ACT
* * * * * * *
Chapter 3.--MILITARY EXPORT CONTROLS
* * * * * * *
Sec. 36. Reports on Commercial and Governmental Military
Exports; Congressional Action.--(a) * * *
* * * * * * *
(g) Information relating to offset agreements provided
pursuant to subparagraph (C) of the fifth sentence of
subsection (b)(1) and the second sentence of subsection (c)(1)
shall be treated as confidential information in accordance with
section [12(c) of the Export Administration Act of 1979] 602(c)
of the Export Administration Act of 2001 (50 U.S.C. App.
2411(c)).
* * * * * * *
Sec. 38. Control of Arms Exports and Imports.--(a) * * *
* * * * * * *
(e) In carrying out functions under this section with
respect to the export of defense articles and defense services,
the President is authorized to exercise the same powers
concerning violations and enforcement which are conferred upon
departments, agencies and officials by [subsections (c), (d),
(e), and (g) of section 11 of the Export Administration Act of
1979, and by subsections (a) and (c) of section 12 of such
Act,] subsections (b), (c), (d), and (e) of section 503 of the
Export Administration Act of 2001, by subsections (a) and (b)
of section 506 of that Act, and by section 602 of that Act,
subject to the same terms and conditions as are applicable to
such powers under such Act, except that section [11(c)(2)(B)]
507(b)(1) of such Act shall not apply, and instead, as
prescribed in regulations issued under this section, the
Secretary of State may assess civil penalties for violations of
this Act and regulations prescribed thereunder and further may
commence a civil action to recover such civil penalties, and
except further that the names of the countries and the types
and quantities of defense articles for which licenses are
issued under this section shall not be withheld from public
disclosure unless the President determines that the release of
such information would be contrary to the national interest.
Nothing in this subsection shall be construed as authorizing
the withholding of information from the Congress.
Notwithstanding section [11(c) of the Export Administration Act
of 1979] 503(c) of the Export Administration Act of 2001, the
civil penalty for each violation involving controls imposed on
the export of defense articles and defense services under this
section may not exceed $500,000.
(f)(1) The President shall periodically review the items on
the United States Munitions List to determine what items, if
any, no longer warrant export controls under this section. The
results of such reviews shall be reported to the Speaker of the
House of Representatives and to the Committee on Foreign
Relations and the Committee on Banking, Housing, and Urban
Affairs of the Senate. Such a report shall be submitted at
least 30 days before any item is removed from the Munitions
List and shall describe the nature of any controls to be
imposed on that item under the Export Administration Act of
[1979] 2001.
* * * * * * *
(g)(1) The President shall develop appropriate mechanisms
to identify, in connection with the export licensing process
under this section--
(A) persons who are the subject of an indictment
for, or have been convicted of, a violation under--
(i) this section,
(ii) section 11 of the Export
Administration Act of 1979 or section 503 of
the Export Administration Act of 2001 (50
U.S.C. App. 2410),
* * * * * * *
SEC. 39A. PROHIBITION ON INCENTIVE PAYMENTS.
(a) * * *
* * * * * * *
(c) In the enforcement of this section, the President is
authorized to exercise the same powers concerning violations
and enforcement and imposition of civil penalties which are
conferred upon departments, agencies and officials by
[subsections (c), (d), (e), and (f) of section 11 of the Export
Administration Act of 1979 and section 12(a) of such Act]
subsections (c), (d), and (e) of section 503, section 507(c),
and subsections (a) and (b) of section 506, of the Export
Administration Act of 2001, subject to the same terms and
conditions as are applicable to such powers under that Act,
except that section [11(c)(2)(B) of such Act] 507(b)(1) of that
Act shall not apply, and instead, as prescribed in regulations
issued under this section, the Secretary of State may assess
civil penalties for violations of this Act and regulations
prescribed thereunder and further may commence a civil action
to recover such civil penalties, and except further that
notwithstanding section [11(c)] 503(c) of that Act, the civil
penalty for each violation of this section may not exceed
$500,000 or five times the amount of the prohibited incentive
payment, whichever is greater.
* * * * * * *
Sec. 40. Transactions with Countries Supporting Acts of
International Terrorism.
(a) * * *
* * * * * * *
(k) Civil Penalties; Enforcement.--In the enforcement of
this section, the President is authorized to exercise the same
powers concerning violations and enforcement which are
conferred upon departments, agencies, and officials by sections
[11(c), 11(e), 11(g), and 12(a) of the Export Administration
Act of 1979] 503(b), 503(c), 503(e), 506(a), and 506(b) of the
Export Administration Act of 2001 (subject to the same terms
and conditions as are applicable to such powers under that
Act), except that section [11(c)(2)(B)] 507(b)(1) of such Act
shall not apply, and instead, as prescribed in regulations
issued under this section, the Secretary of State may assess
civil penalties for violations of this Act and regulations
prescribed thereunder and further may commence a civil action
to recover such civil penalties, and except further that,
notwithstanding section [11(c)] 503(c) of that Act, the civil
penalty for each violation of this section may not exceed
$500,000.
* * * * * * *
CHAPTER 7--CONTROL OF MISSILES AND MISSILE EQUIPMENT OR TECHNOLOGY
SEC. 71. LICENSING
(a) Establishment of List of Controlled Items.--The
Secretary of State, in consultation with the Secretary of
Defense and the heads of other appropriate departments and
agencies, shall establish and maintain, as part of the United
States Munitions List, a list of all items on the MTCR Annex
the export of which is not controlled under [section 6(l) of
the Export Administration Act of 1979] title II or III of the
Export Administration Act of 2001.
* * * * * * *
SEC. 72. DENIAL OF THE TRANSFER OF MISSILE EQUIPMENT OR TECHNOLOGY BY
UNITED STATES PERSONS
(a) Sanctions.--(1) If the President determines that a
United States person knowingly--
(A) exports, transfers, or otherwise engages in the
trade of any item on the MTCR Annex, in violation of
the provisions of section 38 of this Act, [section 5 or
6 of the Export Administration Act of 1979 (50 U.S.C.
App. 2404, 2405)] title II or III of the Export
Administration Act of 2001, or any regulations or
orders issued under any such provisions,
* * * * * * *
(c) Presumption.--In determining whether to apply sanctions
under subsection (a) to a United States person involved in the
export, transfer, or trade of an item on the MTCR Annex, it
should be a rebuttable presumption that such item is designed
for use in a missile listed in the MTCR Annex if the President
determines that the final destination of the item is a country
the government of which the Secretary of State has determined,
for purposes of [6(j)(1)(A) of the Export Administration Act of
1979] 310(a)(1) of the Export Administration Act of 2001, has
repeatedly provided support for acts of international
terrorism.
SEC. 73. TRANSFERS OF MISSILE EQUIPMENT OR TECHNOLOGY BY FOREIGN
PERSONS
(a) Sanctions.--(1) Subject to subsections (c) through (g),
if the President determines that a foreign person, after the
date of the enactment of this chapter, knowingly--
(A) * * *
* * * * * * *
or if the President has made a determination with respect to a
foreign person under section [11B(b)(1) of the Export
Administration Act of 1979] 504(b)(1) of the Export
Administration Act of 2001, then the President shall impose on
that foreign person the applicable sanctions under paragraph
(2).
(f) Presumption.--In determining whether to apply sanctions
under subsection (a) to a foreign person involved in the
export, transfer, or trade of an item on the MTCR Annex, it
should be a rebuttable presumption that such item is designed
for use in a missile listed in the MTCR Annex if the President
determines that the final destination of the item is a country
the government of which the Secretary of State has determined,
for purposes of [6(j)(1)(A) of the Export Administration Act of
1979] section 310(a)(1) of the Export Administration Act of
2001, has repeatedly provided support for acts of international
terrorism.
* * * * * * *
SEC. 74. DEFINITIONS
(a) In General.--For purposes of this chapter--
(1) * * *
* * * * * * *
(6) the term ``United States person'' has the
meaning given that term in section [16(2) of the Export
Administration Act of 1979 (50 U.S.C. App. 2415(2))]
2(20) of the Export Administration Act of 2001;
CHAPTER 8--CHEMICAL OR BIOLOGICAL WEAPONS PROLIFERATION
SEC. 81. SANCTIONS AGAINST CERTAIN FOREIGN PERSONS.
(a) Imposition of Sanctions.--
(1) Determination by the president.--Except as
provided in subsection (b)(2), the President shall
impose both of the sanctions described in subsection
(c) if the President determines that a foreign person,
on or after the date of the enactment of this section,
has knowingly and materially contributed--
(A) * * *
* * * * * * *
(C) through any other transaction not
subject to sanctions pursuant to the Export
Administration Act of [1979] 2001,
to the efforts by any foreign country, project, or
entity described in paragraph (2) to use, develop,
produce, stockpile, or otherwise acquire chemical or
biological weapons.
(2) Countries, projects, or entities receiving
assistance.--Paragraph (1) applies in the case of--
(A) * * *
(B) any foreign country whose government is
determined for purposes of [section 6(j) of the
Export Administration Act of 1979 (50 U.S.C.
2405(j))] section 310 of the Export
Administration Act of 2001 to be a government
that has repeatedly provided support for acts
of international terrorism; or
CHAPTER 10--NUCLEAR NONPROLIFERATION CONTROLS
* * * * * * *
SEC. 102. NUCLEAR REPROCESSING TRANSFERS, ILLEGAL EXPORTS FOR NUCLEAR
EXPLOSIVE DEVICES, TRANSFERS OF NUCLEAR EXPLOSIVE
DEVICES, AND NUCLEAR DETONATIONS.
(a) * * *
(b) Prohibitions on Assistance to Countries Involved in
Transfer or Use of Nuclear Explosive Devices; Exceptions;
Procedures Applicable.--(1) * * *
(2) The sanctions referred to in paragraph (1) are as
follows:
(A) * * *
* * * * * * *
(G) The authorities of [section 6 of the Export
Administration Act of 1979] title III of the Export
Administration Act of 2001 shall be used to prohibit
exports to that country of specific goods and
technology (excluding food and other agricultural
commodities), except that such prohibition shall not
apply to any transaction subject to the reporting
requirements of title V of the National Security Act of
1947 (relating to congressional oversight of
intelligence activities).
* * * * * * *
----------
SECTION 5 OF THE TRADING WITH THE ENEMY ACT
Sec. 5. (a) * * *
(b) The Attorney General shall cover into the Treasury, to
the credit of miscellaneous receipts, all sums from property
vested in or transferred to the Attorney General under this
Act--
(1) * * *
* * * * * * *
(4) The authority granted to the President by this
section does not include the authority to regulate or
prohibit, directly or indirectly, the importation from
any country, or the exportation to any country, whether
commercial or otherwise, regardless of format or medium
of transmission, of any information or informational
materials, including but not limited to, publications,
films, posters, phonograph records, photographs,
microfilms, microfiche, tapes, compact disks, CD ROMs,
artworks, and news wire feeds. The exports exempted
from regulation or prohibition by this paragraph do not
include those which are otherwise controlled for export
under [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] titles II
and III of the Export Administration Act of 2001, or
with respect to which acts are prohibited by chapter 37
of title 18, United States Code.
* * * * * * *
----------
FOREIGN ASSISTANCE ACT OF 1961
* * * * * * *
PART II
Chapter 1--Policy
* * * * * * *
Sec. 502B. Human Rights.--(a)(1) * * *
(2) Except under circumstances specified in this section,
no security assistance may be provided to any country the
government of which engages in a consistent pattern of gross
violations of internationally recognized human rights. Security
assistance may not be provided to the police, domestic
intelligence, or similar law enforcement forces of a country,
and licenses may not be issued under the [Export Administration
Act of 1979] Export Administration Act of 2001 for the export
of crime control and detection instruments and equipment to a
country, the government of which engages in a consistent
pattern of gross violations of internationally recognized human
rights unless the President certifies in writing to the Speaker
of the House of Representatives and the chairman of the
Committee on Foreign Relations of the Senate and the chairman
of the Committee on Banking, Housing, and Urban Affairs of the
Senate (when licenses are to be issued pursuant to the Export
Administration [Act of 1979)] Act of 2001), that extraordinary
circumstances exist warranting provision of such assistance and
issuance of such licenses. Assistance may not be provided under
chapter 5 of this part to a country the government of which
engages in a consistent pattern of gross violations of
internationally recognized human rights unless the President
certifies in writing to the Speaker of the House of
Representatives and the chairman of the Committee on Foreign
Relations of the Senate that extraordinary circumstances exist
warranting provision of such assistance.
* * * * * * *
PART III
Chapter 1--General Provisions
Sec. 620E. Assistance to Pakistan.--(a) * * *
* * * * * * *
(h) Ballistic Missile Sanctions Not Affected.--Nothing
contained herein shall affect sanctions for transfers of
missile equipment or technology required under section [11B of
the Export Administration Act of 1979] 504 of the Export
Administration Act of 2001 or section 73 of the Arms Export
Control Act.
* * * * * * *
SEC. 620H. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT PROVIDE MILITARY
EQUIPMENT TO TERRORIST STATES.
(a) Prohibition.--
(1) In general.--The President shall withhold
assistance under this Act to the government of any
country that provides lethal military equipment to a
country the government of which the Secretary of State
has determined is a terrorist government for the
purposes of [section 6(j) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j))] section 310 of
the Export Administration Act of 2001, or 620A of the
Foreign Assistance Act of 1961 (22 U.S.C. 2371).
* * * * * * *
----------
SECTION 565 OF THE FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEARS
1994 AND 1995
SEC. 565. PROHIBITION ON DISCRIMINATORY CONTRACTS.
(a) Prohibition.--
(1) * * *
(2) For purposes of this section--
(A) a foreign person complies with the
boycott of Israel by Arab League countries when
that foreign person takes or knowingly agrees
to take any action, with respect to the boycott
of Israel by Arab League countries, which
section [8(a) of the Export Administration Act
of 1979 (50 U.S.C. App. 2407(a))] 502(b) of the
Export Administration Act of 2001 prohibits a
United States person from taking, except that
for purposes of this paragraph, the term
``United States person'' as used in
subparagraphs (B) and (C) of section [8(a)(1)
of such Act] 502(b)(1) of that Act shall be
deemed to mean ``person''; and
(B) the term ``foreign person'' means any
person other than a United States person as
defined in section [16(2) of the Export
Administration Act of 1979 (50 U.S.C. App.
2415)] 2(20) of the Export Administration Act
of 2001.
(3) For purposes of paragraph (1), a foreign person
shall be deemed not to comply with the boycott of
Israel by Arab League countries if that person, or the
Secretary of State or his designee on the basis of
available information, certifies that the person
violates or otherwise does not comply with the boycott
of Israel by Arab League countries by taking any
actions prohibited by section [8(a) of the Export
Administration Act of 1979 (50 U.S.C. App. 2407(a))]
502(b) of the Export Administration Act of 2001.
Certification by the Secretary of State or his designee
may occur only 30 days after notice has been given to
the Congress that this certification procedure will be
utilized at a specific overseas mission.
* * * * * * *
(c) Responses to Contract Solicitations.--(1) Except as
provided in paragraph (2) of this subsection, the Secretary of
State shall ensure that any response to a solicitation for a
bid or a request for a proposal, with respect to a contract
covered by subsection (a), includes the following clause, in
substantially the following form:
``arab league boycott of israel
``(a) * * *
``(b) Certification.--By submitting this offer, the Offeror
certifies that it is not--
``(1) taking or knowingly agreeing to take any
action, with respect to the boycott of Israel by Arab
League countries, which section [8(a) of the Export
Administration Act of 1979 (50 U.S.C. App. 2407(a))]
502(b) of the Export Administration Act of 2001
prohibits a United States person from taking; or
* * * * * * *
(3) The Secretary of State shall ensure that all State
Department contract solicitations include a detailed
explanation of the requirements of section [8(a) of the Export
Administration Act of 1979 (50 U.S.C. App. 2407(a))] 502(b) of
the Export Administration Act of 2001.
* * * * * * *
----------
SECTION 140 OF FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEARS 1988
AND 1989
SEC. 140. ANNUAL COUNTRY REPORTS ON TERRORISM.
(a) Requirement of Annual Country Reports on Terrorism.--The
Secretary of State shall transmit to the Speaker of the House
of Representatives and the Committee on Foreign Relations of
the Senate, by April 30 of each year, a full and complete
report providing--
(1) detailed assessments with respect to each foreign
country--
(A) * * *
(B) about which the Congress was notified
during the preceding five years pursuant to
section 6(j) of the Export Administration Act
of 1979 or section 310 of the Export
Administration Act of 2001;
* * * * * * *
(2) all relevant information about the activities
during the preceding year of any terrorist group, and
any umbrella group under which such terrorist group
falls, known to be responsible for the kidnapping or
death of an American citizen during the preceding five
years, any terrorist group known to be financed by
countries about which Congress was notified during the
preceding year pursuant to section 6(j) of the Export
Administration Act of 1979 or section 310 of the Export
Administration Act of 2001, and any other known
international terrorist group which the Secretary
determines should be the subject of such report;
* * * * * * *
----------
STATE DEPARTMENT BASIC AUTHORITIES ACT OF 1956
TITLE I--BASIC AUTHORITIES GENERALLY
* * * * * * *
SEC. 36. DEPARTMENT OF STATE REWARDS PROGRAM.
(a) * * *
* * * * * * *
(j) Definitions.--As used in this section:
(1) Act of international terrorism.--The term ``act
of international terrorism'' includes--
(A) * * *
(B) any act, as determined by the
Secretary, which materially supports the
conduct of international terrorism, including
the counterfeiting of United States currency or
the illegal use of other monetary instruments
by an individual, group, or country supporting
international terrorism as determined for
purposes of [section 6(j)(1)(A) of the Export
Administration Act of 1979 (50 U.S.C. App.
2405(j)(1)(A))] section 310(a)(1) of the Export
Administration Act of 2001.
* * * * * * *
authority to control certain terrorism-related services
Sec. 40. (a) * * *
* * * * * * *
(e) Definitions.--
(1) Designated foreign government.--As used in this
section, the term ``designated foreign government''
means a foreign government that the Secretary of State
has determined, for purposes of [section 6(j)(1) of the
Export Administration Act of 1979] section 310 of the
Export Administration Act of 2001, has repeatedly
provided support for acts of international terrorism.
* * * * * * *
TITLE II--AUTHORITIES RELATING TO THE REGULATION OF FOREIGN MISSIONS
* * * * * * *
property of foreign missions
Sec. 205. (a) * * *
* * * * * * *
(d)(1) * * *
* * * * * * *
(4) For the purposes of this subsection, the term ``foreign
country'' means--
(A) any country listed as a Communist country in
section 620(f) of the Foreign Assistance Act of 1961;
(B) any country determined by the Secretary of
State, for purposes of [section 6(j) of the Export
Administration Act of 1979] section 310 of the Export
Administration Act of 2001, to be a country which has
repeatedly provided support for acts of international
terrorism; and
* * * * * * *
----------
SECTION 528 OF THE FOREIGN OPERATIONS, EXPORT FINANCING, AND RELATED
PROGRAMS APPROPRIATION ACT, 1994
OPPOSITION TO ASSISTANCE TO TERRORIST COUNTRIES BY INTERNATIONAL
FINANCIAL INSTITUTIONS
Sec. 528. (a) Instructions for United States Executive
Directors.--The Secretary of the Treasury shall instruct the
United States Executive Director of each international
financial institution designated in subsection (b), and the
Administrator of the Agency for International Development shall
instruct the United States Executive Director of the
International Fund for Agriculture Development, to use the
voice and vote of the United States to oppose any loan or other
use of the funds of the respective institution to or for a
country for which the Secretary of State has made a
determination under section [6(j) of the Export Administration
Act of 1979] 310 of the Export Administration Act of 2001.
* * * * * * *
----------
SECTION 589 OF THE FOREIGN OPERATIONS, EXPORT FINANCING, AND RELATED
PROGRAMS APPROPRIATION ACT, 1997
civil liability for acts of state sponsored terrorism
Sec. 589. (a) an official, employee, or agent of a
foreign state designated as a state sponsor of terrorism
designated under section [6(j) of the Export Administration Act
of 1979] 310 of the Export Administration Act of 2001 while
acting within the scope of his or her office, employment, or
agency shall be liable to a United States national or the
national's legal representative for personal injury or death
caused by acts of that official, employee, or agent for which
the courts of the United States may maintain jurisdiction under
section 1605(a)(7) of title 28, United States Code, for money
damages which may include economic damages, solatium, pain, and
suffering, and punitive damages if the acts were among those
described in section 1605(a)(7).
* * * * * * *
----------
SECTION 110 OF THE INTERNATIONAL SECURITY AND DEVELOPMENT COOPERATION
ACT OF 1980
exportation of uranium depleted in the isotope 235
Sec. 110. Upon a finding that an export of uranium depleted
in the isotope 235 is incorporated in defense articles or
commodities solely to take advantage of high density or
pyrophoric characteristics unrelated to its radioactivity, such
exports shall be exempt from the provisions of the Atomic
Energy Act of 1954 and of the Nuclear Non-Proliferation Act of
1978 when such exports are subject to the controls established
under the Arms Export Control Act of the Export Administration
[Act of 1979] Act of 2001.
----------
SECTION 203 OF THE INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT
grant of authorities
Sec. 203. (a) * * *
(b) The authority granted to the President by this section
does not include the authority to regulate or prohibit,
directly or indirectly--
(1) * * *
* * * * * * *
(3) the importation from any country, or the
exportation to any country, whether commercial or
otherwise, regardless of format or medium of
transmission, of any information or informational
materials, including but not limited to, publications,
films, posters, phonograph records, photographs,
microfilms, microfiche, tapes, compact disks, CD ROMs,
artworks, and news wire feeds. The exports exempted
from regulation or prohibition by this paragraph do not
include those which are otherwise controlled for export
under [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] the Export
Administration Act of 2001, or with respect to which
acts are prohibited by chapter 37 of title 18, United
States Code; or
* * * * * * *
----------
INTERNATIONAL RELIGIOUS FREEDOM ACT OF 1998
* * * * * * *
TITLE IV--PRESIDENTIAL ACTIONS
Subtitle I--Targeted Responses to Violations of Religious Freedom
Abroad
* * * * * * *
SEC. 405. DESCRIPTION OF PRESIDENTIAL ACTIONS.
(a) Description of Presidential Actions.--Except as
provided in subsection (d), the Presidential actions referred
to in this subsection are the following:
(1) * * *
* * * * * * *
(13) Ordering the heads of the appropriate United
States agencies not to issue any (or a specified number
of ) specific licenses, and not to grant any other
specific authority (or a specified number of
authorities), to export any goods or technology to the
specific foreign government, agency, instrumentality,
or official found or determined by the President to be
responsible for violations under section 401 or 402,
under--
(A) the Export Administration Act of [1979]
2001;
* * * * * * *
Subtitle II--Strengthening Existing Law
* * * * * * *
SEC. 423. EXPORTS OF CERTAIN ITEMS USED IN PARTICULARLY SEVERE
VIOLATIONS OF RELIGIOUS FREEDOM.
(a) Mandatory Licensing.--Notwithstanding any other
provision of law, the Secretary of Commerce, with the
concurrence of the Secretary of State, shall include on the
list of crime control and detection instruments or equipment
controlled for export and reexport under section [6(n) of the
Export Administration Act of 1979 (22 U.S.C. App. 2405(n))] 311
of the Export Administration Act of 2001, or under any other
provision of law, items being exported or reexported to
countries of particular concern for religious freedom that the
Secretary of Commerce, with the concurrence of the Secretary of
State, and in consultation with appropriate officials including
the Assistant Secretary of State for Democracy, Human Rights
and Labor and the Ambassador at Large, determines are being
used or are intended for use directly and in significant
measure to carry out particularly severe violations of
religious freedom.
* * * * * * *
----------
SECTION 103 OF THE CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT OF
1998
SEC. 103. CIVIL LIABILITY OF THE UNITED STATES.
(a) * * *
* * * * * * *
(e) Recoupment.--
(1) * * *
(2) Sanctions on foreign companies.--
(A) * * *
(B) Sanctions.--
(i) * * *
[(ii) Sanctions under export
administration act of 1979.--The
authorities under section 6 of the
Export Administration Act of 1979 shall
be used to prohibit the export of any
goods or technology on the control list
established pursuant to section 5(c)(1)
of that Act to a person described in
subparagraph (A).]
(ii) Sanctions under export
administration act of 2001.--The
authorities of title III of the Export
Administration Act of 2001 shall be
used to prohibit the export to a person
described in subparagraph (A) of any
items on the National Security Control
List established under section 202(a)
of that Act.
* * * * * * *
(3) Sanctions on foreign governments.--
(A) * * *
(B) Sanctions.--
(i) * * *
* * * * * * *
[(iv) Sanctions under export
administration act of 1979.--The
authorities of section 6 of the Export
Administration Act of 1979 shall be
used to prohibit the export of any
goods or technology on the control list
established pursuant to section 5(c)(1)
of that Act to a country described in
subparagraph (A).]
(iv) Sanctions under export
administration act of 2001.--The
authorities of title III of the Export
Administration Act of 2001 shall be
used to prohibit the export to a
country described in subparagraph (A)
of any items on the National Security
Control List established under section
202(a) of that Act.
* * * * * * *
----------
SECTION 1423 OF THE DEFENSE AGAINST WEAPONS OF MASS DESTRUCTION ACT OF
1996
SEC. 1423. SENSE OF CONGRESS CONCERNING CRIMINAL PENALTIES.
(a) * * *
(b) Urging of Revison to Guidelines.--Congress urges the
United States Sentencing Commission to revise the relevant
sentencing guidelines to provide for increased penalties for
offenses relating to importation, attempted importation,
exportation, and attempted exportation of nuclear, biological,
or chemical weapons or related materials or technologies under
the following provisions of law:
(1) Section [11 of the Export Administration Act of
1979 (50 U.S.C. App. 2410)] 503 of the Export
Administration Act of 2001.
* * * * * * *
----------
SECTION 586G OF THE IRAQ SANCTIONS ACT OF 1990
SEC. 586G. SANCTIONS AGAINST IRAQ.
(a) Imposition.--Except as provided in section 586H, the
following sanctions shall apply with respect to Iraq:
(1) * * *
* * * * * * *
[(3) Exports of certain goods and technology.--The
authorities of section 6 of the Export Administration
Act of 1979 (50 U.S.C. App. 2405) shall be used to
prohibit the export to Iraq of any goods or technology
listed pursuant to that section or section 5(c)(1) of
that Act (50 U.S.C. App. 2404(c)(1)) on the control
list provided for in section 4(b) of that Act (50
U.S.C. App. 2403(b)).]
(3) Exports of certain commodities and
technology.--The authorities of titles II and III of
the Export Administration Act of 2001 shall be used to
prohibit the export to Iraq of any commodities or
technology on the Commerce Control List established
under that Act.
* * * * * * *
(b) Contract Sanctity.--For purposes of the export controls
imposed pursuant to subsection (a)(3), [the date described in
subsection (m)(1) of section 6 of the Export Administration Act
of 1979 (50 U.S.C. App. 2405) shall be deemed] the dates
described in section 301(d)(1) of the Export Administration Act
of 2001 shall be deemed to be August 1, 1990.
----------
SECTION 601 OF THE NUCLEAR NON-PROLIFERATION ACT OF 1978
reports of the president
Sec. 601. (a) The President shall review all activities of
Government departments and agencies relating to preventing
proliferation and shall make a report to Congress in January of
1979 and annually in January of each year thereafter on the
Government's efforts to prevent proliferation. This report
shall include but not be limited to-
(1) * * *
* * * * * * *
(6) a description of the implementation of nuclear
and nuclear-related dual-use export controls in the
preceding calendar year, including a summary by type of
commodity and destination of--
(A) all transactions for which--
(i) * * *
* * * * * * *
(iii) approvals were issued under
the Export Administration Act of [1979]
2001, or section 109 b.(3) of the 1954
Act, for the retransfer of any item,
technical data, component, or
substance; or
(iv) authorizations were made as
required by section 57 b.(2) of the
1954 Act to engage, directly or
indirectly, in the production of
special nuclear material; and
* * * * * * *
[(C)] (7) a description of the progress of those
independent states of the former Soviet Union that are
non-nuclear-weapon states and of the Baltic states
towards achieving the objective of applying full scope
safeguards to all their peaceful nuclear activities.
Portions of the information required by [paragraph (6)]
paragraphs (6) and (7) may be submitted in classified form, as
necessary. Any such information that may not be published or
disclosed under section [12(c)(1) of the Export Administration
Act of 1979] 602(a) of the Export Administration Act of 2001
shall be submitted as confidential.
* * * * * * *
----------
CHEMICAL AND BIOLOGICAL WEAPONS CONTROL AND WARFARE ELIMINATION ACT OF
1991
* * * * * * *
TITLE III--CONTROL AND ELIMINATION OF CHEMICAL AND BIOLOGICAL WEAPONS
* * * * * * *
SEC. 304. UNITED STATES EXPORT CONTROLS.
(a) In General.--The President shall--
(1) * * *
(2) use the authorities of the Export Administration
Act of [1979] 2001 to control the export of those goods
and technology,
that the President determines would assist the government of
any foreign country in acquiring the capability to develop,
produce, stockpile, deliver, or use chemical or biological
weapons.
* * * * * * *
SEC. 307. SANCTIONS AGAINST USE OF CHEMICAL OR BIOLOGICAL WEAPONS.
(a) Initial Sanctions.--If, at any time, the President makes
a determination pursuant to section 306(a)(1) with respect to
the government of a foreign country, the President shall
forthwith impose the following sanctions:
(1) * * *
* * * * * * *
[(5) Exports of national security-sensitive goods and
technology.--The authorities of section 6 of the Export
Administration Act of 1979 (50 U.S.C. 2405) shall be
used to prohibit the export to that country of any
goods or technology on that part of the control list
established under section 5(c)(1) of that Act (22
U.S.C. 2404(c)(1)).]
(5) Exports of certain goods and technology.--The
authorities of title III of the Export Administration
Act of 2001 shall be used to prohibit the export to
that country of any goods or technology on the National
Security Control List established under section 202 of
that Act.
(b) Additional Sanctions if Certain Conditions Not Met.--
(1) * * *
(2) Sanctions.--The sanctions referred to in
paragraph (1) are the following:
(A) * * *
* * * * * * *
(C) Further export restrictions.--The
authorities of [section 6 of the Export
Administration Act of 1979] title III of the
Export Administration Act of 2001 shall be used
to prohibit exports to that country of all
other goods and technology (excluding food and
other agricultural commodities and products).
* * * * * * *
(e) Contract Sanctity.--
(1) Sanctions not applied to existing contracts.--(A)
* * *
(B) The same restrictions of [subsection (p) of
section 6 of the Export Administration Act of 1979 (50
U.S.C. App. 2405), as that subsection is so
redesignated by section 304(b) of this title, which are
applicable to exports prohibited under section 6 of
that Act] section 301(d) of the Export Administration
Act of 2001, which are applicable to exports prohibited
under title III of that Act shall apply to exports
prohibited under subsection (a)(5) or (b)(2)(C) of this
section. For purposes of this subparagraph, any
contract or agreement the performance of which (as
determined by the President) would have the effect of
assisting a foreign government in using chemical or
biological weapons in violation of international law or
in using lethal chemical or biological weapons against
its own nationals shall be treated as constituting [a
breach of the peace that poses a serious and direct
threat to the strategic interest of the United States,
within the meaning of subparagraph (A) of section 6(p)
of that Act] a serious threat to a foreign policy
interest of the United States, within the meaning of
section 301(d)(2)(A) of the Export Administration Act
of 2001.
* * * * * * *
----------
SECTION 1705 OF THE CUBAN DEMOCRACY ACT OF 1992
SEC. 1705. SUPPORT FOR THE CUBAN PEOPLE.
(a) * * *
* * * * * * *
(c) Exports of Medicines and Medical Supplies.--Exports of
medicines or medical supplies, instruments, or equipment to
Cuba shall not be restricted--
(1) except to the extent such restrictions would be
permitted under section [5(m) of the Export
Administration Act of 1979] 204(a) of the Export
Administration Act of 2001 or section 203(b)(2) of the
International Emergency Economic Powers Act;
* * * * * * *
----------
IRAN AND LIBYA SANCTIONS ACT OF 1996
SEC. 6. DESCRIPTION OF SANCTIONS.
The sanctions to be imposed on a sanctioned person under
section 5 are as follows:
(1) * * *
(2) Export sanction.--The President may order the
United States Government not to issue any specific
license and not to grant any other specific permission
or authority to export any goods or technology to a
sanctioned person under--
(i) the Export Administration Act of [1979]
2001;
(ii) the Arms Export Control Act;
* * * * * * *
SEC. 8. TERMINATION OF SANCTIONS.
(a) Iran.--The requirement under section 5(a) to impose
sanctions shall no longer have force or effect with respect to
Iran if the President determines and certifies to the
appropriate congressional committees that Iran--
(1) * * *
(2) has been removed from the list of countries the
governments of which have been determined, for purposes
of section [6(j) of the Export Administration Act of
1979] 310 of the Export Administration Act of 2001, to
have repeatedly provided support for acts of
international terrorism.
* * * * * * *
SEC. 14. DEFINITIONS.
As used in this Act:
(1) * * *
* * * * * * *
(3) Component part.--The term ``component part''
has the meaning given that term in section 11A(e)(1) of
the Export Administration Act of 1979 [(50 U.S.C. App.
2410a(e)(1))] (as in effect on August 20, 2001).
* * * * * * *
(6) Finished product.--The term ``finished
product'' has the meaning given that term in section
11A(e)(2) of the Export Administration Act of 1979 [(50
U.S.C. App. 2410a(e)(2))] (as in effect on August 20,
2001).
* * * * * * *
(8) Goods and technology.--The terms ``goods'' and
``technology'' have the meanings given those terms in
section 16 of the Export Administration Act of 1979
[(50 U.S.C. App. 2415)] (as in effect on August 20,
2001).
* * * * * * *
----------
SECTION 1133 OF THE FOOD SECURITY ACT OF 1985
contract sanctity and producer embargo protection
Sec. 1133. (a) It is hereby declared to be the policy of
the United States--
(1) * * *
* * * * * * *
(3) that any prohibition or limitation on the
export of such commodities or porducts should be
imposed only in time of a national emergency declared
by the President under the [Export Administration Act]
International Emergency Economic Powers Act or in time
of war under the Trading with the Enemy Act; and
* * * * * * *
----------
SECTION 208 OF THE AGRICULTURAL TRADE SUSPENSION ADJUSTMENT ACT OF 1980
trade suspension reserves
Sec. 208. Notwithstanding any other provision of law--
(a) Whenever the President or other member of the executive
branch of Government causes the export of any agricultural
commodity to any country or area of the world to be suspended
or restricted [for reasons of national security or foreign
policy under the Export Administration Act of 1979] under title
II or III of the Export Administration Act of 2001 or any other
provision of law and the Secretary of Agriculture determines
that such suspension or restriction will result in a surplus
supply of such commodity that will adversely affect prices
producers receive for the commodity, the Secretary may
establish a gasohol feedstock reserve or a food security
reserve, or both, of the commodity, as provided in subsection
(c) and (d) of this section, if the commodity is suitable for
stockpiling in a reserve.
* * * * * * *
----------
SECTION 411 OF THE AGRICULTURAL TRADE ACT OF 1978
SEC. 411. AGRICULTURAL EMBARGO PROTECTION.
(a) Prerequisites; Scope of Compensation.--Notwithstanding
any other provision of law, if--
(1) the President or other member of the executive
branch of the Federal Government causes the export of
any agricultural commodity to any country or area of
the world to be suspended or restricted [for reasons of
national security or foreign policy under the Export
Administration Act of 1979 (50 U.S.C. App. 2401 et
seq.)] under title II or III of the Export
Administration Act of 2001 or under any other provision
of law;
* * * * * * *
----------
SECTION 302 OF THE BILL EMERSON HUMANITARIAN TRUST ACT
SEC. 302. ESTABLISHMENT OF COMMODITY TRUST.
(a) * * *
* * * * * * *
(e) Treatment of Trust Under Other Law.--Eligible
commodities in the trust established under this section [shall
not be--
[(1) considered] shall not be considered a part of
the total domestic supply (including carryover) for the
purpose of subsection (c) or for the purpose of
administering the Agricultural Trade Development and
Assistance Act of 1954 (7 U.S.C. 1691 et seq.)[; and]
[(2) subject to any quantitative limitation on
exports that may be imposed under section 7 of the
Export Administration Act of 1979 (50 U.S.C. App.
2406)].
* * * * * * *
----------
SECTION 233 OF THE TRADE EXPANSION ACT OF 1962
SEC. 233. IMPORT SANCTIONS FOR EXPORT VIOLATIONS.
Any person who violates any national security export
control imposed under section 5 of the Export Administration
Act of 1979 [(50 U.S.C. App. 2404),](as in effect prior to its
repeal by the Export Administration Act of 2001), any export
control imposed under title II of the Export Administration Act
of 2001, or any regulation, order, or license issued under
[that section] either such section, may be subject to such
controls on the importing of goods or technology into the
United States as the President may prescribe.
----------
SECTION 502 OF THE TRADE ACT OF 1974
SEC. 502. DESIGNATION OF BENEFICIARY DEVELOPING COUNTRIES.
(a) * * *
(b) Countries Ineligible for Designation.--
(1) * * *
(2) Other bases for ineligibility.--The President
shall not designate any country a beneficiary
developing country under this title if any of the
following applies:
(A) * * *
* * * * * * *
(F) Such country aids or abets, by granting
sanctuary from prosecution to, any individual
or group which has committed an act of
international terrorism or the Secretary of
State makes a determination with respect to
such country under section [6(j)(1)(A) of the
Export Administration Act of 1979] 310(a)(1) of
the Export Administration Act of 2001.
* * * * * * *
----------
SECTION 133 OF THE URUGUAY ROUND AGREEMENTS ACT
SEC. 133. MEMBERSHIP IN WTO OF BOYCOTTING COUNTRIES.
It is the sense of the Congress that the Trade
Representative should vigorously oppose the admission into the
World Trade Organization of any country which, through its
laws, regulations, official policies, or governmental
practices, fosters, imposes, complies with, furthers, or
supports any boycott described in [section 8(a) of the Export
Administration Act of 1979 (50 U.S.C. App. 2407(a)) (as in
effect on August 20, 1994)] section 502 of the Export
Administration Act of 2001, including requiring or encouraging
entities within that country to refuse to do business with
persons who do not comply with requests to take any action
prohibited under that section.
----------
INTERNAL REVENUE CODE OF 1986
* * * * * * *
Subtitle A--Income Taxes
* * * * * * *
CHAPTER 1--NORMAL TAXES AND SURTAXES
* * * * * * *
Subchapter N--Tax Based on Income from Sources Within or Without the
United States
* * * * * * *
PART III--INCOME FROM SOURCES WITHOUT THE UNITED STATES
* * * * * * *
Subpart A--Foreign tax credit
* * * * * * *
SEC. 901. TAXES OF FOREIGN COUNTRIES AND OF POSSESSIONS OF UNITED
STATES.
(a) * * *
* * * * * * *
(j) Denial of Foreign Tax Credit, Etc., With Respect to
Certain Foreign Countries.--
(1) * * *
(2) Countries to which subsection applies.--
(A) In general.--This subsection shall
apply to any foreign country--
(i) * * *
* * * * * * *
(iv) which the Secretary of State
has, pursuant to section [6(j) of the
Export Administration Act of 1979, as
amended] 310 of the Export
Administration Act of 2001, designated
as a foreign country which repeatedly
provides support for acts of
international terrorisms.
* * * * * * *
Subpart C--Taxation of Foreign Sales Corporations
* * * * * * *
SEC. 927. OTHER DEFINITIONS AND SPECIAL RULES.
(a) Export Property.--For purposes of this subpart--
(1) * * *
(2) Excluded property.--The term ``export
property'' shall not include--
(A) * * *
* * * * * * *
(C) oil or gas (or any primary product
thereof), or
[(D) products the export of which is
prohibited or curtailed to effectuate the
policy set forth in paragraph (2)(C) of section
3 of the Export Administration Act of 1979
(relating to the protection of the domestic
economy), or]
[(E)] (D) any unprocessed timber which is a
softwood.
For purposes of subparagraph [(E)] (D), the term
``unprocessed timber'' means any log, cant, or similar
form of timber.
* * * * * * *
Subpart E--Qualifying Foreign Trade Income
* * * * * * *
SEC. 943. OTHER DEFINITIONS AND SPECIAL RULES.
(a) Qualifying Foreign Trade Property.--For purposes of
this subpart--
(1) * * *
* * * * * * *
(3) Excluded property.--The term ``qualifying
foreign trade property'' shall not include--
(A) * * *
* * * * * * *
(C) oil or gas (or any primary product
thereof), or
[(D) products the transfer of which is
prohibited or curtailed to effectuate the
policy set forth in paragraph (2)(C) of section
3 of Public Law 96-72, or]
[(E)] (D) any unprocessed timber which is a
softwood.
For purposes of subparagraph [(E)] (D), the term
``unprocessed timber'' means any log, cant, or similar
form of timber.
* * * * * * *
PART IV--DOMESTIC INTERNATIONAL SALES CORPORATIONS
* * * * * * *
Subpart A--Treatment of Qualifying Corporations
* * * * * * *
SEC. 993. DEFINITIONS.
(a) * * *
* * * * * * *
(c) Export Property.--
(1) * * *
(2) Excluded property.--For purposes of this part,
the term ``export property'' does not include--
(A) * * *
* * * * * * *
(C) products of a character with respect to
which a deduction for depletion is allowable
(including oil, gas, coal, or uranium products)
under section 613 or 613A, or
[(D) products the export of which is
prohibited or curtailed under section 7(a) of
the Export Administration Act of 1979 to
effectuate the policy set forth in paragraph
(2)(C) of section 3 of such Act (relating to
the protection of the domestic economy), or]
[(E)] (D) any unprocessed timber which is a
softwood.
Subparagraph (C) shall not apply to any commodity or
product at least 50 percent of the fair market value of
which is attributable to manufacturing or processing,
except that subparagraph (C) shall apply to any primary
product from oil, gas, coal, or uranium. For purposes
of the preceding sentence, the term ``processing'' does
not include extracting or handling, packing, packaging,
grading, storing, or transporting. For purposes of
subparagraph [(E)] (D), the term ``unprocessed timber''
means any log, cant, or similar form of timber.
* * * * * * *
----------
SECTION 721 OF THE DEFENSE PRODUCTION ACT OF 1950
authority to review certain mergers, acquisitions, and takeovers
Sec. 721. (a) * * *
* * * * * * *
(f) Factors To Be Considered.--For purposes of this
section, the President or the President's designee may, taking
into account the requirements of national security, consider
among other factors--
(1) * * *
* * * * * * *
(4) the potential effects of the proposed or
pending transaction on sales of military goods,
equipment, or technology to any country--
(A) identified by the Secretary of State--
(i) under section [6(j) of the
Export Administration Act of 1979] 310
of the Export Administration Act of
2001, as a country that supports
terrorism;
(ii) under [section 6(l) of the
Export Administration Act of 1979] the
Export Administration Act of 2001, as a
country of concern regarding missile
proliferation; or
(iii) under [section 6(m) of the
Export Administration Act of 1979] the
Export Administration Act of 2001, as a
country of concern regarding the
proliferation of chemical and
biological weapons; or
* * * * * * *
----------
SECTION 275 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEARS
1988 AND 1989
SEC. 275. EXPORT OF SEMICONDUCTOR MANUFACTURING
Any export of materials, equipment, and technology developed
by Sematech in whole or in part with financial assistance
provided under section 272(a) shall be subject to the Export
Administration Act of [1979 (50 U.S.C. App. 2401 et seq.)] 2001
and shall not be subject to the Arms Export Control Act.
----------
SECTION 1605 OF TITLE 28, UNITED STATES CODE
Sec. 1605. General exceptions to the jurisdictional immunity of a
foreign state
(a) A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States in
any case--
(1) * * *
* * * * * * *
(7) not otherwise covered by paragraph (2), in
which money damages are sought against a foreign state
for personal injury or death that was caused by an act
of torture, extrajudicial killing, aircraft sabotage,
hostage taking, or the provision of material support or
resources (as defined in section 2339A of title 18) for
such an act if such act or provision of material
support is engaged in by an official, employee, or
agent of such foreign state while acting within the
scope of his or her office, employment, or agency,
except that the court shall decline to hear a claim
under this paragraph--
(A) if the foreign state was not designated
as a state sponsor of terrorism under [section
6(j) of the Export Administration Act of 1979
(50 U.S.C. App. 2405(j))] section 310 of the
Export Administration Act of 2001 or section
620A of the Foreign Assistance Act of 1961 (22
U.S.C. 2371) at the time the act occurred,
unless later so designated as a result of such
act; and
* * * * * * *
----------
SECTION 1621 OF THE INTERNATIONAL FINANCIAL INSTITUTIONS ACT
SEC. 1621. OPPOSITION TO ASSISTANCE BY INTERNATIONAL FINANCIAL
INSTITUTIONS TO TERRORIST STATES.
(a) In General.--The Secretary of the Treasury shall
instruct the United States executive director of each
international financial institution to use the voice and vote
of the United States to oppose any loan or other use of the
funds of the respective institution to or for a country for
which the Secretary of State has made a determination under
[section 6(j) of the Export Administration Act of 1979 (50
U.S.C. App. 2405(j))] section 310 of the Export Administration
Act of 2001 or section 620A of the Foreign Assistance Act of
1961 (22 U.S.C. 2371).
* * * * * * *
----------
FOREST RESOURCES CONSERVATION AND SHORTAGE RELIEF ACT OF 1990
TITLE IV--EXPORTS OF UNPROCESSED TIMBER
* * * * * * *
SEC. 487. SHORT TITLE.
This title may be cited as the ``Forest Resources
Conservation and Shortage Relief Act of 1990''.
* * * * * * *
SEC. 491. RESTRICTION ON EXPORTS OF UNPROCESSED TIMBER FROM STATE AND
OTHER PUBLIC LANDS.
(a) * * *
* * * * * * *
[(f) Western Red Cedar.--Nothing in this section shall be
construed to supersede section 7(i) of the Export
Administration Act of 1979 (50 U.S.C. App. 2406(i)).]
* * * * * * *
[SEC. 499. AUTHORITY OF EXPORT ADMINISTRATION ACT OF 1979.
[Nothing in this title shall be construed to--
[(1) prejudice the outcome of pending or
prospective petitions filed under, or
[(2) warrant the exercise of the authority
contained in,
section 7 of the Export Administration Act of 1979 with respect
to the export of unprocessed timber.]
* * * * * * *
----------
SECTION 904 OF THE TRADE SANCTIONS REFORM AND EXPORT ENHANCEMENT ACT OF
2000
SEC. 904. EXCEPTIONS.
Section 903 shall not affect any authority or requirement
to impose (or continue to impose) a sanction referred to in
section 903--
(1) * * *
(2) to the extent that the sanction would prohibit,
restrict, or condition the provision or use of any
agricultural commodity, medicine, or medical device
that is--
(A) * * *
(B) controlled on any control list
established under the [Export Administration
Act of 1979] Export Administration Act of 2001
or any successor statute (50 U.S.C. App. 2401
et seq.); or
* * * * * * *
----------
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1998
* * * * * * *
DIVISION A--DEPARTMENT OF DEFENSE AUTHORIZATIONS
* * * * * * *
TITLE XII--MATTERS RELATING TO OTHER NATIONS
* * * * * * *
[Subtitle B--Export Controls on High Performance Computers
[SEC. 1211. EXPORT APPROVALS FOR HIGH PERFORMANCE COMPUTERS.
[(a) Prior Approval of Exports and Reexports.--The
President shall require that no digital computer with a
composite theoretical performance level of more than 2,000
millions of theoretical operations per second (MTOPS) or with
such other composite theoretical performance level as may be
established subsequently by the President under subsection (d),
may be exported or reexported without a license to a country
specified in subsection (b) if the Secretary of Commerce, the
Secretary of Defense, the Secretary of Energy, the Secretary of
State, or the Director of the Arms Control and Disarmament
Agency objects, in writing, to such export or reexport. Any
person proposing to export or reexport such a digital computer
shall so notify the Secretary of Commerce, who, within 24 hours
after receiving the notification, shall transmit the
notification to the Secretary of Defense, the Secretary of
Energy, the Secretary of State, and the Director of the Arms
Control and Disarmament Agency.
[(b) Covered Countries.--For purposes of subsection (a),
the countries specified in this subsection are the countries
listed as ``Computer Tier 3'' eligible countries in section
740.7(d) of title 15 of the Code of Federal Regulations, as in
effect on June 10, 1997, subject to modification by the
President under subsection (e).
[(c) Time Limit.--Written objections under subsection (a)
to an export or reexport shall be raised within 10 days after
the notification is received under subsection (a). If such a
written objection to the export or reexport of a computer is
raised, the computer may be exported or reexported only
pursuant to a license issued by the Secretary of Commerce under
the Export Administration Regulations of the Department of
Commerce, without regard to the licensing exceptions otherwise
authorized under section 740.7 of title 15 of the Code of
Federal Regulations, as in effect on June 10, 1997. If no
objection is raised within the 10-day period, the export or
reexport is authorized.
[(d) Adjustment of Composite Theoretical Performance.--The
President, in consultation with the Secretary of Commerce, the
Secretary of Defense, the Secretary of Energy, the Secretary of
State, and the Director of the Arms Control and Disarmament
Agency, may establish a new composite theoretical performance
level for purposes of subsection (a). Such new level shall not
take effect until 60 days after the President submits to the
congressional committees designated in section 1215 a report
setting forth the new composite theoretical performance level
and the justification for such new level. Each report shall, at
a minimum--
[(1) address the extent to which high performance
computers of a composite theoretical level between the
level established in subsection (a) or such level as
has been previously adjusted pursuant to this section
and the new level, are available from other countries;
[(2) address all potential uses of military
significance to which high performance computers at the
new level could be applied; and
[(3) assess the impact of such uses on the national
security interests of the United States.
[(e) Adjustment of Covered Countries.--
[(1) In general.--The President, in consultation
with the Secretary of Commerce, the Secretary of
Defense, the Secretary of Energy, the Secretary of
State, and the Director of the Arms Control and
Disarmament Agency, may add a country to or remove a
country from the list of covered countries in
subsection (b), except that a country may be removed
from the list only in accordance with paragraph (2).
[(2) Deletions from list of covered countries.--The
removal of a country from the list of covered countries
under subsection (b) shall not take effect until 120
days after the President submits to the congressional
committees designated in section 1215 a report setting
forth the justification for the deletion.
[(3) Excluded countries.--A country may not be
removed from the list of covered countries under
subsection (b) if--
[(A) the country is a ``nuclear-weapon
state'' (as defined by Article IX of the Treaty
on the Non-Proliferation of Nuclear Weapons)
and the country is not a member of the North
Atlantic Treaty Organization; or
[(B) the country is not a signatory of the
Treaty on the Non-Proliferation of Nuclear
Weapons and the country is listed on Annex 2 to
the Comprehensive Nuclear Test-Ban Treaty.
[(f) Classification.--Each report under subsections (d) and
(e) shall be submitted in an unclassified form and may, if
necessary, have a classified supplement.
[(g) Delegation of Objection Authority Within the
Department of Defense.--For the purposes of the Department of
Defense, the authority to issue an objection referred to in
subsection (a) shall be executed for the Secretary of Defense
by an official at the Assistant Secretary level within the
office of the Under Secretary of Defense for Policy. In
implementing subsection (a), the Secretary of Defense shall
ensure that Department of Defense procedures maximize the
ability of the Department of Defense to be able to issue an
objection within the 10-day period specified in subsection (c).
[(h) Calculation of 60-Day Period.--The 60-day period
referred to in subsection (d) shall be calculated by excluding
the days on which either House of Congress is not in session
because of an adjournment of the Congress sine die.
[SEC. 1212. REPORT ON EXPORTS OF HIGH PERFORMANCE COMPUTERS.
[(a) Report.--Not later than 60 days after the date of the
enactment of this Act, the President shall provide to the
congressional committees specified in section 1215 a report
identifying all exports of digital computers with a composite
theoretical performance of more than 2,000 millions of
theoretical operations per second (MTOPS) to all countries
since January 25, 1996. For each export, the report shall
identify--
[(1) whether an export license was applied for and
whether one was granted;
[(2) the date of the transfer of the computer;
[(3) the United States manufacturer and exporter of
the computer;
[(4) the MTOPS level of the computer; and
[(5) the recipient country and end user.
[(b) Additional Information on Exports to Certain
Countries.--In the case of exports to countries specified in
subsection (c), the report under subsection (a) shall identify
the intended end use for the exported computer and the
assessment by the executive branch of whether the end user is a
military end user or an end user involved in activities
relating to nuclear, chemical, or biological weapons or missile
technology. Information provided under this subsection may be
submitted in classified form if necessary.
[(c) Covered Countries.--For purposes of subsection (b),
the countries specified in this subsection are--
[(1) the countries listed as ``Computer Tier 3''
eligible countries in section 740.7(d) of title 15 of
the Code of Federal Regulations, as in effect on June
10, 1997; and
[(2) the countries listed in section 740.7(e) of
title 15 of the Code of Federal Regulations, as in
effect on June 10, 1997.
[SEC. 1213. POST-SHIPMENT VERIFICATION OF EXPORT OF HIGH PERFORMANCE
COMPUTERS.
[(a) Required Post-Shipment Verification.--The Secretary of
Commerce shall conduct post-shipment verification of each
digital computer with a composite theoretical performance of
more than 2,000 millions of theoretical operations per second
(MTOPS) that is exported from the United States, on or after
the date of the enactment of this Act, to a country specified
in subsection (b).
[(b) Covered Countries.--For purposes of subsection (a),
the countries specified in this subsection are the countries
listed as ``Computer Tier 3'' eligible countries in section
740.7 of title 15 of the Code of Federal Regulations, as in
effect on June 10, 1997, subject to modification by the
President under section 1211(e).
[(c) Annual Report.--The Secretary of Commerce shall submit
to the congressional committees specified in section 1215 an
annual report on the results of post-shipment verifications
conducted under this section during the preceding year. Each
such report shall include a list of all such items exported
from the United States to such countries during the previous
year and, with respect to each such export, the following:
[(1) The destination country.
[(2) The date of export.
[(3) The intended end use and intended end user.
[(4) The results of the post-shipment verification.
[(d) Explanation When Verification Not Conducted.--If a
post-shipment verification has not been conducted in accordance
with subsection (a) with respect to any such export during the
period covered by a report, the Secretary shall include in the
report for that period a detailed explanation of the reasons
why such a post-shipment verification was not conducted.
[(e) Adjustment of Performance Levels.--Whenever a new
composite theoretical performance level is established under
section 1211(d), that level shall apply for purposes of
subsection (a) of this section in lieu of the level set forth
in subsection (a).
[SEC. 1214. GAO STUDY ON CERTAIN COMPUTERS; END USER INFORMATION
ASSISTANCE.
[(a) In General.--The Comptroller General of the United
States shall submit to the congressional committees specified
in section 1215 a study of the national security risks relating
to the sale of computers with a composite theoretical
performance of between 2,000 and 7,000 millions of theoretical
operations per second (MTOPS) to end users in countries
specified in subsection (c). The study shall also analyze any
foreign availability of computers described in the preceding
sentence and the impact of such sales on United States
exporters.
[(b) End User Information Assistance to Exporters.--The
Secretary of Commerce shall establish a procedure by which
exporters may seek information on questionable end users in
countries specified in subsection (c) who are seeking to obtain
computers described in subsection (a).
[(c) Covered Countries.--For purposes of subsections (a)
and (b), the countries specified in this subsection are the
countries listed as ``Computer Tier 3'' eligible countries in
section 740.7(d) of title 15 of the Code of Federal
Regulations, as in effect on June 10, 1997.
[SEC. 1215. CONGRESSIONAL COMMITTEES.
[For purposes of sections 1211(d), 1212(a), 1213(c), and
1214(a) the congressional committees specified in those
sections are the following:
[(1) The Committee on Banking, Housing, and Urban
Affairs and the Committee on Armed Services of the
Senate.
[(2) The Committee on International Relations and
the Committee on Armed Services of the House of
Representatives.]
* * * * * * *
Dissenting Views
In the wake of the horrific attacks against America on
September 11, 2001, it is more important than ever that this
Committee produce legislation that protects U.S. national
security while maintaining U.S. competitiveness. We are very
concerned that the bill reported by the House International
Relations Committee does neither. Instead, it undoes the
carefully crafted framework of the Export Administration Act of
2001, which together we introduced as H.R. 2557 and which the
Senate passed by a vote of 85-14. The Committee-passed bill
creates a cumbersome system that will result in nothing less
than gridlock in our export control system at the worst
possible time.
During markup, the Committee included nearly three dozen
amendments, many of them passed en bloc as ``technical.'' But
virtually all of these amendments will substantively hinder the
President's flexibility to impose export controls, overwhelm
export control procedures, and create uncertainty and
unpredictability for exporters--all without enhancing national
security.
Ironically, despite the best intentions of the amendments'
distinguished sponsors, the bill as passed in Committee would
only serve to diminish US global military dominance because it
would stifle the competitiveness of the very US industries that
America's military depends upon to maintain its technological
edge. Specifically, the bill as reported by the Committee:
Limits the President's flexibility by
mandating a presumption of denial for an open-ended
range of exported items, harming the President's
discretion to make critical decisions and forcing
exporters to prove innocence before engaging in trade--
which among other things, runs counter to American
judicial philosophy.
Lowers the threshold for controlling items,
greatly diminishing discipline on, and accountability
of, imposition of controls without adding any national
security benefit.
Adds unnecessary complexity and delay to an
already excessively slow system by requiring that all
mass-market and foreign availability determinations go
through another extensive interagency process, and
establishes departmental quotas, rather than expertise,
for technical evaluation personnel.
Confuses the technical exercise of commodity
classification with policy decision-making, and invites
chaos by applying a totally inappropriate interagency
dispute resolution process to the commodity
classification process--all of which is unnecessary in
light of the Administration's announced plans to revise
current classification guidelines.
Decreases the disciplines for foreign policy
controls, reducing accountability and transparency in
the process of setting and maintaining such controls.
Adds an unnecessary layer of bureaucracy to
the licensing process by requiring the involvement of
agencies that traditionally have not been involved in
all licensing processes.
Undermines efforts to maintain accountability
and streamline bureaucracy by increasing the ability of
agencies to indefinitely delay license applications--an
amendment overwhelmingly rejected (74-19) by the
Senate.
It is no accident that the Administration has refused to
endorse the Committee legislation. Instead, the
Administration's national security and economic team has
reiterated its support for the Export Administration Act of
2001. On September 3, Secretary of State Colin Powell,
Secretary of Defense Donald Rumsfeld, and Secretary of Commerce
Donald Evans stated that the Export Administration Act of 2001
``will provide the President with the authority and flexibility
he needs to administer a stronger, updated export control
system . . .''
National security and defense experts have warned Congress
that ``feel good'' controls just don't work:
Dr. Donald A. Hicks, Reagan Administration
Under Secretary of Defense for Research & Engineering
and Chairman of the Defense Science Board Task Force on
Globalization and Security stated in February 2001
testimony: ``The Cold War's end . . . points to the
utter futility of the U.S. attempting to control
unilaterally technologies, products and services that
even its closest allies are releasing onto the world
market.''
Dr. John J. Hamre, former Deputy Secretary of
Defense and currently President and Chief Executive
Officer of the Center for Strategic & International
Studies testified in February 2001 that ``America needs
effective export controls to protect its national
security. Our current system of export controls fails
that test--fails badly . . . In demanding to put a
stamp on every export transaction, then ultimately
approving 99.4% of the requests, we are not really
protecting our security. In fact, we're diverting
resources from protecting the most important technology
and products.''
Frank C. Carlucci, former Secretary of
Defense, former National Security Advisor, and Chairman
of Nortel Networks stated in June 1999: ``We need to
staunch the flow of technology to those who would harm
us. But we should do only that which has an effect, not
that which simply makes us feel good. Many technologies
are uncontrollable given the access of the Internet;
others can and will be supplied by our competitors . .
. [Congress'] job . . . is to strike the right
balance--don't help our enemies but at the same time
allow innovation and research to flourish.''
Rep. Chris Cox, Chairman of the Cox
Committee, formally known as the Select Committee on
U.S. National Security and Military/Commercial Concerns
with the People's Republic of China, said in June 1999
testimony that ``We ought not to have export controls
to pretend to make ourselves safe as a country. We
ought to have export controls that work. And you have
to assume that if the Ministry of State Security in the
People's Republic of China can gain access to the
computers at Los Alamos, they can probably gain access
to a Radio Shack in Europe.''
In fact, defense experts have testified that maintaining
controls on widely available items could seriously damage the
U.S. military and harm national security. The Defense Science
Board Task Force on Globalization and Security, which Dr. Hicks
chaired, concluded in 1999 that:
``DOD is relying increasingly on the U.S.
commercial advanced technology sector to push the
technological envelope and enable the Department to
``run faster'' than its competitors. DOD is not a large
enough customer, however, to keep the U.S. high-tech
sector vibrant. Exports are now the key to growth and
good health . . . If U.S. high-tech exports are
restricted in any significant manner, it could well
have a stifling effect on the U.S. military's rate of
technological advancement.''
``[S]hutting U.S. companies out of markets
served instead by foreign firms could inhibit the
competitiveness of the U.S. commercial advanced
technology and defense sectors upon which U.S. economic
security and military-technical advantage depend.''
``If the United States responds to what some
parochially and inaccurately view as preventable
hemorrhaging of U.S. advanced technology . . . by
unilaterally tightening controls on high-tech exports
to states such as China, new competitors in Taiwan,
Korea, Japan, and Europe can be expected to move
quickly to fill the market void . . . [T]he losers will
be U.S. industry, whose technological and market
leadership will face new challenges, and DOD, whose
access to the world's most advanced technologies will
be at the very least complicated, and perhaps
compromised, by virtue of their being developed and
produced by non-US firms.''
``Protection of capabilities and technologies
readily available on the world market is, at best,
unhelpful to the maintenance of military dominance and,
at worst, counterproductive (e.g., by undermining the
industry upon which U.S. military-technological
supremacy depends) . . . DOD must put up higher walls
around a much smaller group of capabilities and
technologies.''
Unfortunately, the Committee-passed bill flies in the face
of these recommendations. In sum, the Committee mark does
nothing to promote U.S. national security, while actively
threatening U.S. competitiveness--at the worst possible time.
Protecting Americans & Enhancing U.S. Prosperity and Competitiveness
In sharp contrast to the Committee-passed bill, H.R. 2557,
the Export Administration Act of 2001, will achieve these
important goals. This bipartisan, carefully crafted legislation
replaces the old Cold War export control regime with a modern,
effective framework that promotes both U.S. national security
and U.S. competitiveness by building a higher fence around a
smaller number of truly sensitive items. The bill will ensure
that during the war on terrorism, the President will have full
flexibility to react swiftly and with full authority, while at
the same time providing important economic stimulus to keep the
U.S. economy moving forward. Like its Senate companion, which
was approved overwhelmingly (85-14) by the Senate on September
6, H.R. 2557 meets the dual challenges of protecting Americans
and stimulating the economy.
H.R. 2557, the Export Administration Act of 2001, is
designed to protect Americans while enhancing U.S. prosperity
and competitiveness. First, the legislation protects Americans.
Endorsed by our commander-in-chief and his national security
team, the Export Administration Act provides unprecedented
authority to the President to control exports for national
security or foreign policy purposes. National Security Advisor
Condoleezza Rice, Secretary of State Colin Powell, Secretary of
Defense Donald Rumsfeld, and Secretary of Commerce Donald Evans
unanimously agree that the bill will provide the President with
the authority and flexibility he needs to administer a
stronger, updated export control system.
Second, the legislation ensures U.S. prosperity and
competitiveness and provides an important stimulus to the U.S.
economy during this difficult economic time. By removing
ineffective controls on widely available items, the bill allows
key U.S. industries to maintain their competitiveness (and
their ability to provide critical technologies to the U.S.
military). For example:
The Computer Coalition For Responsible
Exports (CCRE) noted that the Export Administration Act
of 2001 was ``developed in cooperation with the Bush
Administration and its national security team, is
designed to modernize the export control system to
effectively balance U.S. economic and national security
interests.''
AeA (formerly the American Electronics
Association) stated that ``it is of the utmost
importance to the nation's high-tech trade economy that
[Congress] passes a new EAA . . . [B]oth the government
and high-tech industries face harsh consequences if
nothing is done to update export legislation. In
addition to potential legal challenges to the
reinstatement of IEEPA, there would be lost export
opportunities and lost jobs for U.S. industry, and a
failure to advance foreign policy goals for the U.S.
government . . . The president and the people
understand the importance of technology trade in modern
society; now it is time for Congress to come forward
and recognize the new world.''
The Electronic Industry Association (EIA)
noted that the current regime ``is more harmful than
helpful to U.S. national security interests and is
slow, cumbersome, and generally disadvantageous to the
U.S. high-tech community vis-a-vis our competitors
abroad. A renewed and revised Export Administration Act
(EAA) offers an opportunity to bring the export control
regime into greater alignment with global and
technological realities. A promising approach to EAA
renewal--one that strikes an acceptable balance between
national security and global commerce--is . . . the
Export Administration Act of 2001.
Fighting Terrorism
Export control authority represents one of the critical
Presidential sanctions authorities designed to respond to
terrorism. The export control framework established by H.R.
2557 would allow the President maximum flexibility to impose
critical national security or foreign policy export controls to
respond quickly and effectively to threats to U.S. interests as
he sees fit. Moreover, the bill contains critical provisions
designed specifically to address terrorism. For example:
Section 201 authorizes the President to
impose export controls for national security purposes--
including and especially to ``deter acts of
international terrorism.''
Section 301 authorizes the imposition of
export controls for foreign policy purposes--
specifically 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.''
Section 310 explicitly provides the President
with the ability to control items, notwithstanding any
other provision of the bill, to address governments
that are determined to be supporters of international
terrorism (specifically, to prevent exports of items
that ``could make a significant contribution to the
military potential of such country, including its
military logistics capability, or could enhance the
ability of such country to support acts of
international terrorism'').
Section 503 significantly enhances criminal
and civil penalties for export control violations above
current levels, with criminal fine of up to $1 million
or 10 times the value of the exports for individual
violations, and up to $5 million or 10 times the value
of the exports for corporate violations.
Sections 504 and 505 reauthorize both the
current missile proliferation control and chemical and
biological weapons control sanctions.
The terrible events of September 11 make it all too clear
that the President must have the tools he needs to fight
terrorism. Because export controls are specifically designed to
address terrorism, and will play a key role in any Presidential
anti-terrorism initiative, immediate enactment of the Export
Administration Act of 2001 would assure the President's ability
to use export controls swiftly and with full statutory
authority to address U.S. national security and foreign policy
needs during the war against terrorism over the coming months
and years.
Urgency
Enactment of H.R. 2557 is all the more critical given that
the old Cold War export control statute--the Export
Administration Act of 1979--expired on August 20, 2001. Without
a new statutory regime in place, the President was forced to
rely on executive authority to maintain our dual-use export
control system. On August 17, President Bush therefore issued
Executive Order 13222 (Continuation of Export Control
Regulations). Stating that ``the unrestricted access of foreign
parties to U.S. goods and technology and the existence of
certain boycott practices of foreign nations, in light of the
expiration of the Export Administration Act of 1979 . . .
constitute an unusual and extraordinary threat to the national
security, foreign policy, and economy of the United States,''
the President declared a national emergency and invoked the
International Emergency Economic Powers Act (IEEPA) to maintain
the provisions of the 1979 Act and the regulations issued
thereunder.
Maintaining the export control system via IEEPA presents
legal and substantive risks, particularly during this critical
time. First, the continuation of export controls pursuant to
IEEPA has been subject to a number of court challenges that,
although unsuccessful to date, have raised questions about the
viability of IEEPA as a long-term basis for the export control
system. Second, an IEEPA-based export control regime impedes
strong Executive enforcement of export controls, as it provides
only minor penalties and limited authorization for arrests and
search warrants.
Passage of H.R. 2557 is essential if the President is to
operate export controls on a sound footing. Congress must act
swiftly to provide the President full statutory authority in
this critical area. As National Security Advisor Condoleezza
Rice noted on August 2, ``a new EAA will provide use the
strongest authority to administer dual-use export controls,
particularly as related to enforcement, penalties for export
control violations, and the protection of business proprietary
information.'' She then endorsed swift enactment of the Export
Administration Act of 2001 (H.R. 2557/S. 149).
Strong Administration Endorsement
The President and his national security team repeatedly
have endorsed the Export Administration Act of 2001 (H.R. 2557/
S. 149) and urged its swift passage.
On March 28, the President told an audience
that ``the Export Administration Act--a good bill--
passed the Banking Committee 19-1 . . . And I urge the
Senate to pass it quickly.''
On May 8, the President said ``I'm pleased to
report, the Senate Banking Committee passed a revised
EAA, which my administration strongly supports. It's
now time to pass it for the House, so I can sign it
into law.''
On August 2, National Security Advisor Rice
expressed appreciation for scheduling the Export
Administration Act of 2001 for consideration, and noted
that the bill ``has the Administration's strong
support.''
On September 3, Secretary of State Colin
Powell, Secretary of Defense Donald Rumsfeld, and
Secretary of Commerce Donald Evans stated that the
Export Administration Act of 2001 ``will provide the
President with the authority and flexibility he needs
to administer a stronger, updated export control system
. . . President Bush strongly supports the bill as
passed by the Senate Banking Committee and wants to
move forward in this important area.''
Summary
As noted, H.R. 2557 establishes an effective, modern
framework for dual-use export controls. It protects Americans
and enhances U.S. prosperity and competitiveness by building a
higher fence around a smaller number of truly sensitive items.
Specifically, the bill contains the following provisions:
Title I provides general authorities for the
conduct of U.S. export control policies. Under this
title, the Secretary of Commerce is authorized to
identify items subject to export controls, and to
establish and maintain a Commerce Control List
consisting of items that, if exported to certain end-
users or for certain end-uses, could jeopardize U.S.
national security.
Title II authorizes the President to impose
export controls for national security purposes. The
authority is vested in the President and exercised by
the Secretary of Commerce, in consultation with the
Secretary of Defense, the intelligence agencies, and
other appropriate departments and agencies. Section 201
retains the purpose set forth in the 1979 Act: to
restrict the export of items that would contribute to
the military potential of countries so as to prove
detrimental to the national security of the United
States. However, Section 201 expands this purpose in
two important areas. First, it authorizes national
security export controls to stem the proliferation of
weapons of mass destruction and the means to deliver
them. Second, it explicitly authorizes national
security export controls to ``deter acts of
international terrorism.''
Section 201 also provides the President with
two additional control authorities not previously
codified in statute: authority to impose export
controls based on the end-use or end-user of an item if
that item could contribute to the proliferation of
weapons of mass destruction or the means to deliver
them; and authority to impose enhanced controls on
items notwithstanding their status as incorporated
components or as foreign-available or mass-market, if
the President determines that removing controls would
constitute a significant threat to U.S. national
security.
Title III authorizes the imposition of export
controls for foreign policy purposes. This authority is
vested in the President. Section 301 outlines the
purposes for foreign policy controls: namely, to
promote the foreign policy objectives of the United
States; to promote international peace, stability, and
respect for fundamental human rights; and 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.
Sections 309 and 310 provide the President
with the ability to control items, notwithstanding any
other provision of the bill, for two critical reasons:
to comply with international obligations and
multilateral export control regime commitments, and to
address governments that are determined to be
supporters of international terrorism (specifically, to
prevent exports of items that ``could make a
significant contribution to the military potential of
such country, including its military logistics
capability, or could enhance the ability of such
country to support acts of international terrorism'').
Title IV outlines procedures for review of
export license applications. Section 401 provides for
the receipt and timely review of export license
applications by the Department of Commerce and other
appropriate agencies. Section 402 establishes an
interagency dispute resolution process for disputed
applications that provides for consideration of the
views of all participating agencies, with an appeal
process that ultimately may be escalated to the
President for final determination.
Title V sets forth provisions on multilateral
export regimes, foreign boycotts, multilateral
sanctions, and domestic enforcement. Section 501 of the
bill encourages U.S. participation in multilateral
export control regimes that support U.S. objectives.
Section 502 recodifies the foreign boycott provisions
of the 1979 Act.
Section 503 significantly enhances criminal
and civil penalties for export control violations above
the levels set forth in the 1979 Act or in IEEPA. It
subjects individuals to a criminal fine of up to $1
million or 10 times the value of the exports for each
violation, whichever is greater, for willfully
violating or willfully conspiring to violate the
provisions of the bill or any regulation issued
thereunder. In addition, individuals may be imprisoned
for a period of up to 10 years. Persons other than
individuals (such as companies) may be fined up to $5
million or 10 times the value of the export, whichever
is greater, for each violation. In addition, the
Secretary of Commerce may impose on a violator a
maximum civil fine of $500,000 for each export control
violation.
Sections 504 and 505 reauthorize both the
current missile proliferation control and chemical and
biological weapons control sanctions. These sanctions
serve as strong deterrents to U.S. or foreign persons
who may knowingly transfer missile technology or lethal
chemical or biological weapons to persons in violation
of the Missile Technology Control regime guidelines, or
to persons that the President has determined has
directly engaged in the illegal use, transfer or
preparation of chemical and biological weapons.
Section 506 strengthens the enforcement tools
of the Office of Export Enforcement of the Bureau of
Export Administration, and provides additional
authorizations for funding for the Bureau of Export
Administration. Section 506 also terminates the
authority granted under S. 149 on September 30, 2004,
unless the President provides to Congress a detailed
report on the operation of the Export Administration
Act of 2001 and of U.S. export controls in general, and
either submits to Congress legislative reform proposals
in connection with that report or certifies to Congress
that reforms in connection with that report are not
necessary.
Title VI provides for the implementation of
the authorities granted under the bill. Section 601
provides for the delegation of authority to the
Secretary of Commerce and Under Secretary of Commerce
for Export Administration, and authorizes the President
and Secretary of Commerce to issue regulations to carry
out the bill.
Title VII contains miscellaneous provisions.
Section 701 requires the Secretary to report annually
to Congress regarding export controls. Section 702
makes technical and conforming amendments. Among these
amendments is a provision repealing certain sections of
the fiscal year 1998 National Defense Authorization Act
(NDAA) to allow the President full flexibility to
establish the most effective measurement standard for
the control of computer technologies.
In closing, this Committee has a duty to the American
people to report legislation that protects U.S. national
security while maintaining U.S. competitiveness. The World
Trade Center and Pentagon attacks made clear that such
legislation is even more important today, as the President and
Congress work together to fight terrorism. Strong and effective
export control authority is a critical tool in the President's
arsenal in this effort, and H.R. 2557 will give him the
authority and flexibility he needs to enhance American security
as well as the American economy. Unfortunately, the Committee-
reported legislation does not fulfill these objectives. For
this reason, we cannot give it our support.
Robert Menendez.
Earl Blumenauer.
Jeff Flake.