Calendar No. 311
106th CONGRESS
1st Session
S. 1712
[Report No. 106-180]
A BILL
To provide authority to control exports, and for other purposes.
October 8, 1999
Read twice and placed on the calendar
S 1712 PCS
Calendar No. 311
106th CONGRESS
1st Session
S. 1712
[Report No. 106-180]
To provide authority to control exports, and for other
purposes.
IN THE SENATE OF THE UNITED STATES
October 8, 1999
Mr. GRAMM, from the Committee on Banking, Housing, and Urban Affairs,
reported the following original bill; which was read twice and placed on the
calendar
A BILL
To provide authority to control exports, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the `Export Administration Act
of 1999'.
(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
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. 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. 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
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.
TITLE IV--EXEMPTION FOR AGRICULTURAL COMMODITIES, MEDICINE, AND MEDICAL
SUPPLIES
Sec. 401. Exemption for agricultural commodities, medicine, and medical
supplies.
Sec. 402. Termination of export controls required by law.
TITLE V--PROCEDURES FOR EXPORT LICENSES AND INTERAGENCY DISPUTE
RESOLUTION
Sec. 501. Export license procedures.
Sec. 502. Interagency dispute resolution process.
TITLE VI--INTERNATIONAL ARRANGEMENTS; FOREIGN BOYCOTTS; SANCTIONS; AND
ENFORCEMENT
Sec. 601. International arrangements.
Sec. 602. Foreign boycotts.
Sec. 604. Multilateral export control regime violation sanctions.
Sec. 605. Missile proliferation control violations.
Sec. 606. Chemical and biological weapons proliferation sanctions.
Sec. 608. Administrative procedure.
TITLE VII--EXPORT CONTROL AUTHORITY AND REGULATIONS
Sec. 701. Export control authority and regulations.
Sec. 702. Confidentiality of information.
TITLE VIII--MISCELLANEOUS PROVISIONS
Sec. 801. Annual and periodic reports.
Sec. 802. Technical and conforming amendments.
Sec. 803. Savings provisions.
SEC. 2. DEFINITIONS.
(1) AFFILIATE- The term `affiliate' includes both governmental entities
and commercial entities that are controlled in fact by the government of a
country.
(2) AGRICULTURE COMMODITY- The term `agriculture commodity' means any
agricultural commodity, food, fiber, or livestock (including livestock, as
defined in section 602(2) of the Emergency Livestock Feed Assistance Act of
1988 (title VI of the Agricultural Act of 1949 (7 U.S.C. 1471(2))), and
including insects), and any product thereof.
(3) CONTROL OR CONTROLLED- The terms `control' and `controlled' mean any
requirement, condition, authorization, or prohibition on the export or
reexport of an item.
(4) CONTROL LIST- The term `Control List' means the Commerce Control
List established under section 101.
(5) CONTROLLED COUNTRY- The term `controlled country' means a country
with respect to which exports are controlled under section 201 or 301.
(6) CONTROLLED ITEM- The term `controlled item' means an item the export
of which is controlled under this Act.
(7) COUNTRY- The term `country' means a sovereign country or an
autonomous customs territory.
(8) COUNTRY SUPPORTING INTERNATIONAL TERRORISM- The term `country
supporting international terrorism' means a country designated by the
Secretary of State pursuant to section 310.
(9) DEPARTMENT- The term `Department' means the Department of
Commerce.
(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; and
(iii) 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.
(11) FOREIGN AVAILABILITY STATUS- The term `foreign availability status'
means the status described in section 211(d)(1).
(12) 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.
(A) IN GENERAL- The term `item' means any good, service, or
technology.
(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.
(14) MASS-MARKET STATUS- The term `mass-market status' means the status
described in section 211(d)(2).
(15) 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.
(16) NATIONAL SECURITY CONTROL LIST- The term `National Security Control
List' means the list established under section 202(a).
(17) PERSON- The term `person' includes--
(A) any individual, or 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.
(18) REEXPORT- The term `reexport' means the shipment, transfer,
transshipment, or diversion of items from one foreign country to
another.
(19) SECRETARY- The term `Secretary' means the Secretary of
Commerce.
(20) 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)).
(21) 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 (in this Act
referred to as the `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.
(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 such 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 or other
authorization to export an item under this Act shall not be required for an
exporter to provide after-market service or replacement parts, 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 or other authorization is
required to export such parts; or
(2) the after-market service or replacement parts 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.
(e) REGULATIONS- The Secretary may prescribe such regulations as are
necessary to carry out the provisions of this Act.
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.
(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, 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 under the
International Emergency Economic Powers 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, including the
Department of Commerce and other appropriate departments and agencies of the
Government. The Secretary shall permit the widest possible participation by
the business community on the export control advisory committees.
(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 evidence 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, 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. 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.
(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 intelligence agencies, and 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 or its allies.
(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- Notwithstanding any other provision of
this title, controls may be imposed, based on the end use or end user, on the
export of any item, that could materially contribute to the proliferation of
weapons of mass destruction or the means to deliver them.
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 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.
(1) REQUIREMENT- The Secretary shall, in establishing and maintaining
the National Security Control List, balance the national security risks of
not controlling the export of an item against the economic costs of
controlling the item, taking into consideration the risk factors set forth
in paragraph (2).
(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 such
item.
(C) The controllability of the item.
(D) Any other risk factor the Secretary deems appropriate to
consider.
SEC. 203. COUNTRY TIERS.
(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 a 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
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.
(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.
(1) IN GENERAL- The President shall establish a country tiering system
consisting of 5 tiers for purposes of this section, ranging from tier 1
through tier 5.
(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
tier 1. Countries that represent the highest risk of diversion or misuse of
an item on the National Security Control List shall be assigned to tier
5.
(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 tier 2, 3, or 4, respectively, 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 the following risk
factors:
(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 capabilities regarding chemical, biological, and
nuclear weapons and the country's membership in, and level of compliance
with, relevant multilateral export control regimes.
(4) The country's position regarding missile systems and the country's
membership in, and level of compliance with, relevant multilateral export
control regimes.
(5) The country's other military capabilities and the potential threat
posed by the country to the United States or its allies.
(6) The effectiveness of the country's export control system.
(7) The level of the country's cooperation with United States export
control enforcement and other efforts.
(8) The risk of export diversion by the country to a higher tier
country.
(9) The designation of the country as a country supporting international
terrorism under section 310.
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.
(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 (other than a country designated as a country
supporting international terrorism pursuant to section 310) 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.
(2) REEXPORT TO CERTAIN TERRORIST COUNTRIES- No authority or permission
may be required under this title to reexport to a country designated as a
country supporting international terrorism pursuant to section 310 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 10 percent or less of the total value of
the item.
(3) 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 the procedures set forth in 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, or
(3) upon receipt of a petition filed by an interested party,
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- The Secretary shall establish a process for
an interested party 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 and other appropriate
Government agencies and with the Office of Technology Evaluation (established
pursuant to section 214).
(c) RESULT OF DETERMINATION-
(1) IN GENERAL- 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--
(A) a foreign availability status, or
(B) 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 or under section 1211 of the National
Defense Authorization Act of Fiscal Year 1998 with respect to the item,
unless the President makes a determination described in section 212 or 213
with respect to the item in that 30-day period.
(2) CONFORMING AMENDMENT- Section 1211(d) of the National Defense
Authorization Act for Fiscal Year 1998 is amended in the second sentence by
striking `180' and inserting `60'.
(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- The Secretary shall determine that an item has
mass-market status under this subtitle, if the item (or a substantially
identical or directly competitive item)--
(A) is produced and is available for sale in a large volume to
multiple potential purchasers;
(B) is widely distributed through normal commercial channels, such as
retail stores, direct marketing catalogues, electronic commerce, and other
channels;
(C) is conducive to shipment and delivery by generally accepted
commercial means of transport; and
(D) may be used for its normal intended purpose without substantial
and specialized service provided by the manufacturer, distributor, or
other third party.
(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, the properties, nature, and quality
of the item.
(B) DIRECTLY COMPETITIVE ITEM-
(i) IN GENERAL- 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.
(ii) EXCEPTION- An item is not directly competitive with a
controlled item if the item is substantially inferior 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 DETERMINATION.
(a) CRITERIA FOR PRESIDENTIAL SET-ASIDE-
(1) POTENTIAL FOR ELIMINATION- If the President determines that--
(A) the absence of export controls with respect to an item would prove
detrimental to the national security of the United States, and
(B) there is a high probability that the foreign availability status
of an item will be eliminated through multilateral negotiations within a
reasonable period of time taking into account the characteristics of the
item,
the President may set aside the Secretary's determination of foreign
availability status with respect to the item.
(2) REPORT TO CONGRESS- The President shall promptly--
(A) report any set-aside determination described in paragraph (1) 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-
(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 multilateral negotiations to eliminate
the foreign availability of the item.
(3) EXPIRATION OF PRESIDENTIAL SET-ASIDE- A determination by the
President described in subsection (a) 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 multilateral 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) 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 SET-ASIDE- If the President determines that--
(1) decontrolling or failing to control an item constitutes a serious
threat to the national security of the United States, and
(2) export controls on the item would be likely to diminish the threat
to, and advance the national security interests of, the United States,
the President may set aside the Secretary's determination of mass-market
status with respect to the item.
(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 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- The Secretary shall establish in the Department of
Commerce an Office of Technology Evaluation (in this subtitle referred to as
the `Office'), which shall be under the direction of the Secretary. The Office
shall be responsible for gathering and analyzing all the necessary information
in order for the Secretary to make determinations of foreign availability and
mass-market status under this Act.
(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 801 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 representative 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 protection of 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.
(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.
(c) EXCEPTION- The President may not control under this title the export
from a foreign country (whether or not by a United States person) of any item
produced or originating in a foreign country that contains parts or components
produced or originating in the United States.
(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 date on which the President
reports to Congress the President's intention to impose controls 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 control is initially imposed
or the date on which the President reports to Congress the President's
intention to impose controls 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 directly 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.
(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.
(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, specific, and compelling 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) a conclusion that the probable achievement of 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 the 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 2002 and every 2 years thereafter.
(2) EXCEPTION- This section shall not apply to an export control imposed
under this title that--
(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.
(1) IN GENERAL- Not later than February 1 of each renewal year, the
President shall review all export controls in effect under this title.
(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.
(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 and compelling United
States foreign policy objective that the existing export control was
intended to achieve.
(i) the extent to the 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 any export control imposed under this title that is
not required by law at any time.
(b) EXCEPTION- Paragraphs (1) and (2) of subsection (a) do not apply to
any export control imposed under this title that is targeted against any
country designated as a country supporting international terrorism pursuant to
section 310.
(c) EFFECTIVE DATE OF TERMINATION- The termination of an export control
pursuant to this section shall take effect on the date notice of the
termination is 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
in order to fulfill obligations 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- A license shall be required for the export of an
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.
TITLE IV--EXEMPTION FOR AGRICULTURAL COMMODITIES, MEDICINE, AND MEDICAL
SUPPLIES
SEC. 401. EXEMPTION FOR AGRICULTURAL COMMODITIES, MEDICINE, AND MEDICAL
SUPPLIES.
Notwithstanding any other provision of law, the export controls imposed on
items under title III shall not apply to agricultural commodities, medicine,
and medical supplies.
SEC. 402. TERMINATION OF EXPORT CONTROLS REQUIRED BY LAW.
Notwithstanding any other provision of law, the President shall terminate
any export control mandated by law on agricultural commodities, medicine, and
medical supplies upon the date of enactment of this Act except for a control
that is specifically reimposed by law.
SEC. 403. EXCLUSIONS.
Sections 401 and 402 do not apply to the following:
(1) The export of agricultural commodities, medicine, and medical
supplies that are subject to national security export controls under title
II.
(2) The export of agricultural commodities, medicine, and medical
supplies to a country against which an embargo is in effect under the
Trading With the Enemy Act.
TITLE V--PROCEDURES FOR EXPORT LICENSES AND INTERAGENCY DISPUTE
RESOLUTION
SEC. 501. 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 the United States or the national security interests
of the United States from the misuse of the item.
(C) The risk of export diversion or misuse by--
(ii) the method of export;
(iv) the country where the end-user is located; and
(D) 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.
(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.
(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;
(ii) 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
Department of Defense and other departments and agencies as the
Secretary considers appropriate;
(iii) ensure that the classification stated on the application for
the export items is correct; and
(iv) 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 Department
of Defense and other reviewing departments and agencies shall take all
necessary actions in a prompt and responsible manner on an application. 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
25 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 25-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 25 days after the date the
application is referred, the Secretary shall--
(1) if there is agreement among the referral departments and agencies 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 the referral departments and
agencies, notify the applicant that the application is subject to the
interagency dispute resolution process.
(e) CONSEQUENCES OF APPLICATION DENIAL-
(1) IN GENERAL- If a determination is made to deny a license, the
applicant shall be informed in writing by the Secretary of--
(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 receive
consideration 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 intends 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.
(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- Delays upon which the Secretary and the
applicant mutually agree.
(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 other governments, if such
consultation is provided for by a relevant multilateral regime as a
precondition for approving a license.
(h) CLASSIFICATION REQUESTS AND OTHER INQUIRIES-
(1) CLASSIFICATION REQUESTS- In any case in which the Secretary receives
a written request asking for the proper classification of an item on the
Control List or the applicability of licensing requirements under this
title, the Secretary shall promptly
notify the Secretary of Defense and other departments and agencies the
Secretary considers appropriate. The Secretary shall, within 14 days after
receiving the request, inform the person making the request of the proper
classification.
(2) OTHER INQUIRIES- In any case in which the Secretary receives a
written request for information under this Act, the Secretary shall, within
30 days after receiving the request, reply with that information to the
person making the request.
SEC. 502. 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 subsection (c)(2)) and make a decision on the license
application, including appropriate revisions or conditions thereto.
(2) 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--
(A) provide for decision-making based on the majority vote of the
participating departments and agencies;
(B) provide that a department or agency that fails to take a timely
position, citing the specific statutory and regulatory bases for a denial,
shall be deemed to have no objection to the pending decision;
(C) provide that any decision of an interagency committee established
under paragraph (1) or interagency dispute resolution process established
under this paragraph may be escalated to the next higher level of review
at the request of any representative of a department or agency that
participated in the interagency committee or dispute resolution process
that made the decision; and
(D) ensure that matters are resolved or referred to the President not
later than 90 days after the date the completed license application is
referred by the Secretary.
(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 VI--INTERNATIONAL ARRANGEMENTS; FOREIGN BOYCOTTS; SANCTIONS; AND
ENFORCEMENT
SEC. 601. 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 Secretary 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 implementation of its rules and guidelines
through uniform and consistent interpretations of its export controls.
(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 and practices.
(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 or with the national
interest), publish in the Federal Register 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 not inconsistent with arrangements under the regime or with the
national interest, publish in the Federal Register 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.
(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. 602. 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. 603. PENALTIES.
(1) VIOLATIONS BY AN INDIVIDUAL- Any individual who knowingly 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,
except that the term of imprisonment may be increased to life for multiple
violations or aggravated circumstances.
(2) VIOLATIONS BY A PERSON OTHER THAN AN INDIVIDUAL- Any person other
than an individual who knowingly 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 $10,000,000, 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, 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
$1,000,000 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 except as set forth in section 607(h).
(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) section 229, of title 18, United States Code,
(K) a provision of the Atomic Energy Act (42 U.S.C. 201 et
seq.),
(L) section 831 of title 18, United States Code, or
(M) 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.
(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. 604. MULTILATERAL EXPORT CONTROL REGIME VIOLATION SANCTIONS.
(a) IMPOSITION OF SANCTIONS-
(1) IN GENERAL- 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--
(A) a foreign person has violated any regulation issued by a country
to control exports for national security purposes pursuant to a
multilateral export control regime; and
(B) such violation has substantially aided a country in--
(i) acquiring military significant capabilities or weapons, if the
country is an actual or potential adversary of the United
States;
(ii) acquiring nuclear weapons provided such country is other than
the declared nuclear states of the People's Republic China, the Republic
of France, the Russian Federation, the United Kingdom, and the United
States;
(iii) acquiring biological or chemical weapons; or
(2) NOTIFICATION OF CONGRESS- The President shall notify Congress of
each action taken under this section.
(b) APPLICABILITY AND FORMS OF 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 the procurement of products
and services from, a sanctioned person, by any department, agency, or
instrumentality of the United States Government.
(2) A prohibition on the importation into the United States of all items
produced by a sanctioned person.
(c) EXCEPTIONS- The President shall not apply sanctions under this
section--
(1) in the case of procurement of defense items--
(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 items and no alternative supplier can be
identified; or
(C) if the President determines that such items are essential to the
national security under defense coproduction agreements;
(2) in any case in which such sanctions would violate United States
international obligations including treaties, agreements, or understandings;
or
(A) items 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 Congress of the intention
to impose the sanctions;
(B) after-market service and replacement parts including
upgrades;
(C) component parts, but not finished products, essential to United
States products or productions; or
(D) 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 set forth in section 601(b)(2).
(e) SUBSEQUENT MODIFICATIONS OF SANCTIONS- The President may, after
consultation with the Committee on Banking, Housing, and Urban Affairs of the
Senate and the Committee on International Relations of the House of
Representatives, 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 evidence available to the United States,
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 section 601(b)(2); and
(3) the parent, affiliate, subsidiary, or successor entity, has
instituted improvements in internal controls sufficient to detect and
prevent violations of the multilateral export control regime.
SEC. 605. MISSILE PROLIFERATION CONTROL VIOLATIONS.
(a) VIOLATIONS BY UNITED STATES PERSONS-
(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 603.
(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-
(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
(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.
(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. 606. 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.
(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;
(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.
(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. 607. 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.
(A) EXERCISE OF AUTHORITY- To the extent necessary or appropriate to
the enforcement of this Act, officers or 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
the department or agency, 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 Services 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 commodities or technology 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 602. 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.
(ii) OEE PERSONNEL- Any officer and 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.
(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 the
customs officer or any other person with respect to the seizure and
forfeiture of property under the customs laws may be performed with respect
to seizures and forfeitures of property under this subsection by the
Secretary or any officer or employee of the Department that may be
authorized or designated for that purpose by the Secretary, or, upon the
request of the Secretary, by any other agency that has authority to manage
and dispose of seized property.
(c) REFERRAL OF CASES- All cases involving violations of this Act shall be
referred to the Secretary for purposes of determining civil penalties and
administrative sanctions under section 603 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), and subsections
(a) and (c) of section 304, and section 305 of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 254 (a) and (c) and
255);
(B) funds made available for export enforcement under this 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.
(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 801, 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).
(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)(i) any violation of, or conspiracy to violate, the Export
Administration Act of 1999 or the Export Administration Act of
1979.'.
(f) POST-SHIPMENT VERIFICATION-
(1) IN GENERAL- The Secretary shall target post-shipment verifications
to exports involving the greatest risk to national security including, but
not limited to, exports of high performance computers.
(2) REPEAL- Section 1213 of the National Defense Authorization Act for
Fiscal Year 1998 is repealed.
(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- If the country in which the end-user is located
refuses to allow post-shipment verification of a controlled item, 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) AWARD OF COMPENSATION; PATRIOT PROVISION-
(A) any person, who is not an employee or officer of the United
States, furnishes to a United States attorney, to the Secretary of the
Treasury or the Secretary, or to appropriate officials in the Department
of the Treasury or the Department of Commerce, original information
concerning a violation of this Act or any regulation, order, or license
issued under this Act, which is being, or has been, perpetrated or
contemplated by any other person, and
(B) such information leads to the recovery of any criminal fine, civil
penalty, or forfeiture,
the Secretary may award and pay such person an amount that does not
exceed 25 percent of the net amount of the criminal fine or civil penalty
recovered or the amount forfeited.
(2) DOLLAR LIMITATION- The amount awarded and paid to any person under
this section may not exceed $250,000 for any case.
(3) SOURCE OF PAYMENT- The amount paid under this section shall be paid
out of any penalties, forfeitures, or appropriated funds.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
SEC. 608. 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 603 may be imposed only after notice and opportunity for an agency
hearing on the record in accordance with sections 554 through 557 of title
5, United States Code. The imposition of any such administrative sanction
shall be subject to judicial review in accordance with sections 701 through
706 of title 5, United States Code.
(2) AVAILABILITY OF CHARGING LETTER- Any charging letter or other
document initiating administrative proceedings for the imposition of
sanctions for violations of the regulations issued under section 602 shall
be made available for public inspection and copying.
(c) COLLECTION- If any person fails to pay a civil penalty imposed under
section 603, 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 603, 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 603.
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 the 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 603. 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.
TITLE VII--EXPORT CONTROL AUTHORITY AND REGULATIONS
SEC. 701. 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(f) in formulating regulations under this title. The second
sentence of this subsection does not require the concurrence or approval of
any official, department, or agency to which such regulations are
submitted.
(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(f) in amending regulations issued under this Act.
SEC. 702. 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 602(c)(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 13(b)(2) of the Export
Administration Act of 1979, 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 501(h),
(C) information or evidence obtained in the course of any
investigation,
(D) information obtained or furnished under title VII 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 602 of this Act except for information required to be disclosed by
section 602(c)(2) or 606(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).
Any officer or employee who commits such violation may also be removed from
office or employment for the violation of paragraph (1). Subsections 603
(e), (g), (h), and (i) and 606 (a), (b), and (c) shall apply to violations
described in this paragraph.
TITLE VIII--MISCELLANEOUS PROVISIONS
SEC. 801. ANNUAL AND PERIODIC REPORTS.
(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 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 the regulations issued under this Act;
(5) a description of organizational and procedural changes undertaken in
furtherance of this Act;
(6) a description of the enforcement activities, violations, and
sanctions imposed under section 604;
(7) 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;
(8) summary of export license data by export identification code and
dollar value by country;
(9) an identification of processing time by--
(B) top 25 export identification codes;
(10) an assessment of the effectiveness of multilateral regimes, and a
description of negotiations regarding export controls;
(11) a description of the significant differences between the export
control requirements of the United States and those of other multilateral
control regime members, the specific differences between United States
requirements and those of other significant supplier countries, and a
description of the extent to
which the executive branch intends to address the differences;
(12) an assessment of the costs of export controls;
(13) a description of the progress made toward achieving the goals
established for the Department dealing with export controls under the
Government Performance Results Act; and
(14) 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) CONGRESSIONAL NOTIFICATION- Whenever the Secretary determines, in
consultation with other appropriate departments and agencies, that a
significant violation of this Act poses a direct and imminent threat to United
States national security interests, the Secretary, in consultation with other
appropriate departments and agencies, shall advise the Committee on Banking,
Housing, and Urban Affairs of the Senate and the Committee on International
Relations of the House of Representatives of such violation consistent with
the protection of law enforcement sources, methods, and activities.
(d) FEDERAL REGISTER PUBLICATION REQUIREMENTS- Whenever information under
this Act is required to be published in the Federal Register, such information
shall, in addition, be made available on the appropriate Internet website of
the Department.
SEC. 802. 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) is 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) FOREST RESOURCES CONSERVATION AND SHORTAGE ACT- Section 491 of the
Forest Resource Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620c)
is repealed.
(i) ARMS EXPORT CONTROL ACT-
(1) Section 38 of the Arms Export Control Act (22 U.S.C. 2778) is
amended--
(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 603 of the Export Administration Act of
1999, by subsections (a) and (b) of section 607 of such Act, and by
section 702 of such Act,'; and
(ii) in the third sentence, by striking `11(c) of the Export
Administration Act of 1979' and inserting `603(c) of the Export
Administration Act of 1999'; and
(B) in subsection (g)(1)(A)(ii), by inserting `or section 603 of the
Export Administration Act of 1999' after `1979'.
(2) Section 39A(c) of the Arms Export Control Act 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 603,
section 608(c), and subsections (a) and (b) of section 607, of the Export
Administration Act of 1999'; and
(B) by striking `11(c)' and inserting `603(c)'.
(3) Section 40(k) of the Arms Export Control Act (22 U.S.C. 2780(k)) is
amended--
(A) by striking `11(c), 11(e), 11(g), and 12(a) of the Export
Administration Act of 1979' and inserting `603(b), 603(c), 603(e), 607(a),
and 607(b) of the Export Administration Act of 1999'; and
(B) by striking `11(c)' and inserting `603(c)'.
(j) 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
1999'.
(2) Section 502B(a)(2) of the Foreign Assistance Act of 1961 (22 U.S.C.
2304(a)(2)) is amended in the second sentence--
(A) by striking `Export Administration Act of 1979' the first place it
appears and inserting `Export Administration Act of 1999'; and
(B) by striking `Act of 1979)' and inserting `Act of 1999)'.
(3) 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 1999' after `Act of 1979'; and
(B) in paragraph (2), by inserting `or 310 of the Export
Administration Act of 1999' after `6(j) of the Export Administration Act
of 1979'.
(4) Section 40(e)(1) of the State Department Basic Authorities Act of
1956 (22 U.S.C. 2712(e)(1)) is amended by striking `section 6(j)(1) of the
Export Administration Act of 1979' and inserting `section 310 of the Export
Administration Act of 1999'.
(5) Section 205(d)(4)(B) of the State Department Basic Authorities Act
of 1956 (22 U.S.C. 4305(d)(4)(B)) is amended by striking `section 6(j) of
the Export Administration Act of 1979' and inserting `section 310 of the
Export Administration Act of 1999'.
(6) 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 1999'.
(7) Section 203(b)(3) of the International Emergency Economic Powers Act
(50 U.S.C. 1702(b)(3)) is amended by striking `section 5 of the Export
Administration Act of 1979, or under section 6 of such Act to the extent
that such controls promote the nonproliferation or antiterrorism policies of
the United States' and inserting `the Export Administration Act of
1999'.
(8) 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 1999'.
(9) Section 2332d(a) of title 18, United States Code, is amended by
striking `section 6(j) of the Export Administration Act of 1979 (50 U.S.C.
App. 2405)' and inserting `section 310 of the Export Administration Act of
1999'.
(10) 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 1999'.
(11) 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 1999'.
(12) Section 1956(c)(7)(D) of title 18, United States Code, is amended
by striking `section 11 (relating to violations) of the Export
Administration of 1979' and inserting `section 603 (relating to penalties)
of the Export Administration Act of 1999'.
SEC. 803. 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 802,
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 802, 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 802.
(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) 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.
END