S 149 RS
Mr. ENZI (for himself, Mr. GRAMM, Mr. SARBANES, Mr. JOHNSON, Mr. HAGEL, Mr. ROBERTS, Ms. STABENOW, Mr. BAYH, Mr. BENNETT, Mr. REID, Ms. CANTWELL, Mr. BUNNING, and Mr. CRAPO) introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs
Reported by Mr. GRAMM, with an amendment
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
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(a) SHORT TITLE- This Act may be cited as the
`Export Administration Act of 2001'.
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(b) TABLE OF CONTENTS- The table of contents of
this Act is as follows:
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Sec. 1. Short title; table of contents.
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Sec. 2. Definitions.
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TITLE I--GENERAL AUTHORITY
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Sec. 101. Commerce Control List.
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Sec. 102. Delegation of authority.
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Sec. 103. Public information; consultation
requirements.
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Sec. 104. Right of export.
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Sec. 105. Export control advisory committees.
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Sec. 106. President's Technology Export Council.
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Sec. 107. Prohibition on charging fees.
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TITLE II--NATIONAL SECURITY EXPORT CONTROLS
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Subtitle A--Authority and Procedures
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Sec. 201. Authority for national security export
controls.
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Sec. 202. National Security Control List.
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Sec. 203. Country tiers.
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Sec. 204. Incorporated parts and components.
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Sec. 205. Petition process for modifying export
status.
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Subtitle B--Foreign Availability and Mass-Market
Status
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Sec. 211. Determination of foreign availability
and mass-market status.
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Sec. 212. Presidential set-aside of foreign
availability determination.
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Sec. 213. Presidential set-aside of mass-market
status determination.
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Sec. 214. Office of Technology Evaluation.
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TITLE III--FOREIGN POLICY EXPORT CONTROLS
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Sec. 301. Authority for foreign policy export
controls.
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Sec. 302. Procedures for imposing controls.
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Sec. 303. Criteria for foreign policy export
controls.
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Sec. 304. Presidential report before imposition
of control.
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Sec. 305. Imposition of controls.
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Sec. 306. Deferral authority.
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Sec. 307. Review, renewal, and termination.
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Sec. 308. Termination of controls under this
title.
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Sec. 309. Compliance with international
obligations.
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Sec. 310. Designation of countries supporting
international terrorism.
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TITLE IV--EXEMPTION FOR AGRICULTURAL COMMODITIES,
MEDICINE, AND MEDICAL SUPPLIES
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Sec. 401. Exemption for agricultural
commodities, medicine, and medical supplies.
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Sec. 402. Termination of export controls
required by law.
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Sec. 403. Exclusions.
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TITLE V--PROCEDURES FOR EXPORT LICENSES AND
INTERAGENCY DISPUTE RESOLUTION
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Sec. 501. Export license procedures.
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Sec. 502. Interagency dispute resolution
process.
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TITLE VI--INTERNATIONAL ARRANGEMENTS; FOREIGN
BOYCOTTS; SANCTIONS; AND ENFORCEMENT
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Sec. 601. International arrangements.
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Sec. 602. Foreign boycotts.
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Sec. 603. Penalties.
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Sec. 604. Multilateral export control regime
violation sanctions.
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Sec. 605. Missile proliferation control
violations.
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Sec. 606. Chemical and biological weapons
proliferation sanctions.
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Sec. 607. Enforcement.
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Sec. 608. Administrative procedure.
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TITLE VII--EXPORT CONTROL AUTHORITY AND REGULATIONS
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Sec. 701. Export control authority and
regulations.
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Sec. 702. Confidentiality of information.
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TITLE VIII--MISCELLANEOUS PROVISIONS
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Sec. 801. Annual and periodic reports.
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Sec. 802. Technical and conforming amendments.
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Sec. 803. Savings provisions.
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SEC. 2. DEFINITIONS.
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In this Act:
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(1) AFFILIATE- The term `affiliate' includes
both governmental entities and commercial entities that are controlled in
fact by the government of a country.
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(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.
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(3) CONTROL OR CONTROLLED- The terms `control'
and `controlled' mean any requirement, condition, authorization, or
prohibition on the export or reexport of an item.
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(4) CONTROL LIST- The term `Control List' means
the Commerce Control List established under section 101.
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out]
(5) CONTROLLED COUNTRY- The term `controlled
country' means a country with respect to which exports are controlled under
section 201 or 301.
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(6) CONTROLLED ITEM- The term `controlled item'
means an item the export of which is controlled under this Act.
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(7) COUNTRY- The term `country' means a
sovereign country or an autonomous customs territory.
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(8) COUNTRY SUPPORTING INTERNATIONAL TERRORISM-
The term `country supporting international terrorism' means a country
designated by the Secretary of State pursuant to section 310.
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(9) DEPARTMENT- The term `Department' means the
Department of Commerce.
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(10) EXPORT-
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(A) The term `export' means--
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(i) an actual shipment, transfer, or
transmission of an item out of the United States;
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(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; or
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(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.
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(B) The term includes a reexport.
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(11) FOREIGN AVAILABILITY STATUS- The term
`foreign availability status' means the status described in section
211(d)(1).
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(12) FOREIGN PERSON- The term `foreign person'
means--
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(A) an individual who is not--
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(i) a United States citizen;
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(ii) an alien lawfully admitted for
permanent residence to the United States; or
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(iii) a protected individual as defined in
section 274B(a)(3) of the Immigration and Nationality Act. (8 U.S.C.
1324b(a)(3));
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(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
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(C) any governmental entity of a foreign
country.
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(13) ITEM-
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(A) IN GENERAL- The term `item' means any
good, technology, or service.
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(B) OTHER DEFINITIONS- In this paragraph:
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(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.
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(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.
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(iii) SERVICE- The term `service' means any
act of assistance, help or aid.
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(14) MASS-MARKET STATUS- The term `mass-market
status' means the status described in section 211(d)(2).
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(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.
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(16) NATIONAL SECURITY CONTROL LIST- The term
`National Security Control List' means the list established under section
202(a).
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(17) PERSON- The term `person' includes--
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(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
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(B) any government, or any governmental
entity, including any governmental entity operating as a business
enterprise.
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(18) REEXPORT- The term `reexport' means the
shipment, transfer, transshipment, or diversion of items from one foreign
country to another.
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(19) SECRETARY- The term `Secretary' means the
Secretary of Commerce.
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(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)).
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(21) UNITED STATES PERSON- The term `United
States person' means--
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(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);
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(B) any domestic concern (including any
permanent domestic establishment of any foreign concern); and
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(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.
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TITLE I--GENERAL AUTHORITY
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SEC. 101. COMMERCE CONTROL LIST.
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(a) IN GENERAL- Under such conditions as the
Secretary may impose, consistent with the provisions of this Act, the
Secretary--
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(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
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(2) may require any type of license, or other
authorization, including recordkeeping and reporting, appropriate to the
effective and efficient implementation of this Act with respect to the
export of an item on the Control List or otherwise subject to control under
title II or III of this Act.
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(b) TYPES OF LICENSE OR OTHER AUTHORIZATION- The
types of license or other authorization referred to in subsection (a)(2)
include the following:
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(1) SPECIFIC EXPORTS- A license that authorizes
a specific export.
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(2) MULTIPLE EXPORTS- A license that authorizes
multiple exports in lieu of a license for each such export.
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(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.
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(4) LICENSE EXCEPTION- Authority to export an
item on the Control List without prior license or notification in lieu of a
license.
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(c) AFTER-MARKET SERVICE AND REPLACEMENT PARTS- A
license to export an item under this Act shall not be required for an exporter
to provide after-market service or replacement parts, to replace on a
one-for-one basis parts that were in an item that was lawfully exported from
the United States, unless--
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(1) the Secretary determines that such license
is required to export such parts; or
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(2) the after-market service or replacement
parts would materially enhance the capability of an
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out][Struck out->] item which was the basis for the item being
controlled.
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(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.
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(e) REGULATIONS- The Secretary may prescribe such
regulations as are necessary to carry out the provisions of this Act.
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SEC. 102. DELEGATION OF AUTHORITY.
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(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.
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(b) EXCEPTIONS-
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(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.
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(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.
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SEC. 103. PUBLIC INFORMATION; CONSULTATION
REQUIREMENTS.
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(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.
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(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.
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SEC. 104. RIGHT OF EXPORT.
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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.
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SEC. 105. EXPORT CONTROL ADVISORY COMMITTEES.
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(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 officials,
including officials from the Departments of Commerce, Defense, and State, and
other appropriate departments and agencies of the Government. The Secretary
shall permit the widest possible participation by the business community on
the export control advisory committees.
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(b) FUNCTIONS-
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(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.
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(2) OTHER CONSULTATIONS- Nothing in paragraph
(1) shall prevent the United States Government from consulting, at any time,
with any person representing an industry or the general public, regardless
of whether such person is a member of an export control advisory committee.
Members of the public shall be given a reasonable opportunity, pursuant to
regulations prescribed by the Secretary, to present information to such
committees.
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(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.
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(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.
[<-Struck out][Struck out->] The Secretary shall consult with each such committee
on such termination or extension of that committee.
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(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.
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SEC. 106. PRESIDENT'S TECHNOLOGY EXPORT COUNCIL.
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The President may establish a President's
Technology Export Council to advise the President on the implementation,
operation, and effectiveness of this Act.
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SEC. 107. PROHIBITION ON CHARGING FEES.
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No fee may be charged in connection with the
submission or processing of an application for an export license under this
Act.
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TITLE II--NATIONAL SECURITY EXPORT CONTROLS
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Subtitle A--Authority and Procedures
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SEC. 201. AUTHORITY FOR NATIONAL SECURITY EXPORT
CONTROLS.
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(a) AUTHORITY-
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(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.
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(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.
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(b) PURPOSES- The purposes of national security
export controls are the following:
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(1) To restrict the export of items that would
contribute to the military potential of countries so as to prove detrimental
to the national security of the United States, its allies or countries
sharing common strategic objectives with the United States.
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(2) To stem the proliferation of weapons of mass
destruction, and the means to deliver them, and other significant military
capabilities by--
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(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;
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(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
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(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.
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(3) To deter acts of international terrorism.
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(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.
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(d) ENHANCED CONTROLS- Notwithstanding any other
provisions of this title, the President may determine that applying the
provisions of section 204(b) or section 211 with respect to an item on the
National Security Control List would constitute a significant threat to the
national security of the United States and that such item requires enhanced
control. If the President determines that enhanced control should apply to
such item, it shall be excluded from the provisions of section 204(b), section
211, or both, until such time as the President shall determine that such
enhanced control should no longer apply to such item. The President may not
delegate the authority provided for in this subsection.
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out]
SEC. 202. NATIONAL SECURITY CONTROL LIST.
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(a) ESTABLISHMENT OF LIST-
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(1) ESTABLISHMENT- The Secretary shall establish
and maintain a National Security Control List as part of the Control List.
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(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.
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(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
provided that the National Security Control List shall, on the date of
enactment of this Act, include all of the items on the Commerce Control List
controlled on the day before the date of enactment of this Act to protect
the national security of the United States, to prevent the proliferation of
weapons of mass destruction and the means to deliver them, and to deter acts
of international terrorism. The Secretary shall periodically review and,
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, adjust the National Security Control List
to add items that require control under this section and to remove items
that no longer warrant control under this section.
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out]
(b) RISK ASSESSMENT-
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(1) REQUIREMENT- In establishing and maintaining
the National Security Control List, the risk factors set forth in paragraph
(2) shall be considered, weighing national security concerns and economic
costs.
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(2) RISK FACTORS- The risk factors referred to
in paragraph (1), with respect to each item, are as follows:
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(A) The characteristics of the item.
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(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.
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(C) The effectiveness of controlling the item
for national security purposes of the United States, taking into account
mass-market status, foreign availability, and other relevant factors.
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(D) The threat to the national security
interests of the United States if the item is not controlled.
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(E) Any other appropriate risk factors.
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(c) REPORT ON CONTROL LIST- Not later than 90 days
after the date of enactment of this Act, the Secretary shall submit a report
to Congress which lists all items on the Commerce Control List controlled on
the day before the date of enactment of this Act to protect the national
security of the United States, to prevent the proliferation of weapons of mass
destruction and the means to deliver them, and to deter acts of international
terrorism, not included on the National Security Control List pursuant to the
provisions of this Act.
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SEC. 203. COUNTRY TIERS.
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out]
(a) IN GENERAL-
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(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--
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(A) establish and maintain a country tiering
system in accordance with subsection (b); and
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out]
(B) based on the assessments required under
subsection (c), assign each country to an appropriate tier for each item
or group of items the export of which is controlled for national security
purposes under this title.
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(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.
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(3) REDETERMINATION AND REVIEW OF ASSIGNMENTS-
The President may redetermine the assignment of a country to a particular
tier at any time and shall review and, as the President considers
appropriate, reassign country tiers on an on-going basis. The Secretary
shall provide notice of any such reassignment to the Committee on Banking,
Housing, and Urban Affairs of the Senate and the Committee on International
Relations of the House of Representatives.
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(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.
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(b) TIERS-
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(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.
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(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.
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(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).
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(c) ASSESSMENTS- The President shall make an
assessment of each country in assigning a country tier taking into
consideration risk factors including the following:
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out]
(1) The present and potential relationship of
the country with the United States.
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(2) The present and potential relationship of
the country with countries friendly to the United States and with countries
hostile to the United States.
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(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.
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(4) The country's capabilities regarding missile
systems and the country's membership in, and level of compliance with,
relevant multilateral export control regimes.
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(5) Whether the country, if a NATO or major
non-NATO ally with whom the United States has entered into a free trade
agreement as of January 1, 1986, controls exports in accordance with the
criteria and standards of a multilateral export control regime as defined in
section 2(15) pursuant to an international agreement to which the United
States is a party.
[<-Struck out]
(6) The country's other military capabilities
and the potential threat posed by the country to the United States or its
allies.
[<-Struck out]
(7) The effectiveness of the country's export
control system.
[<-Struck out]
(8) The level of the country's cooperation with
United States export control enforcement and other efforts.
[<-Struck out]
(9) The risk of export diversion by the country
to a higher tier country.
[<-Struck out]
(10) The designation of the country as a country
supporting international terrorism under section 310.
[<-Struck
out]
(d) TIER APPLICATION- The country tiering system
shall be used in the determination of license requirements pursuant to section
201(a)(1).
[<-Struck out]
SEC. 204. INCORPORATED PARTS AND COMPONENTS.
[<-Struck out]
(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--
[<-Struck out]
(1) are essential to the functioning of the
item,
[<-Struck out]
(2) are customarily included in sales of the
item in countries other than controlled countries, and
[<-Struck
out]
(3) comprise 25 percent or less of the total
value of the item,
[<-Struck out]
unless the item itself, if exported, would by
virtue of the functional characteristics of the item as a whole make a
[<-Struck out][Struck out->] significant contribution to the military or
proliferation potential of a controlled country or end user which would prove
detrimental to the national security of the United States, or unless failure to
control the item would be contrary to the provisions of section 201(c), section
201(d), or section 309 of this Act.
[<-Struck out]
(b) REEXPORTS OF FOREIGN-MADE ITEMS INCORPORATING
UNITED STATES CONTROLLED CONTENT-
[<-Struck out]
(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.
[<-Struck out]
(2) DEFINITION OF CONTROLLED UNITED STATES
CONTENT- For purposes of this paragraph, the term `controlled United States
content' of an item means those parts or components that--
[<-Struck out]
(A) are subject to the jurisdiction of the
United States;
[<-Struck out]
(B) are incorporated into the item; and
[<-Struck out]
(C) would, at the time of the reexport,
require a license under this title if exported from
[<-Struck
out][Struck out->] the United States to a country to which the item is
to be reexported.
[<-Struck out]
SEC. 205. PETITION PROCESS FOR MODIFYING EXPORT
STATUS.
[<-Struck out]
(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.
[<-Struck out]
(b) EVALUATIONS AND DETERMINATIONS- Evaluations
and determinations with respect to a petition filed pursuant to this section
shall be made in accordance with section 202.
[<-Struck out]
Subtitle B--Foreign Availability and Mass-Market
Status
[<-Struck out]
SEC. 211. DETERMINATION OF FOREIGN AVAILABILITY AND
MASS-MARKET STATUS.
[<-Struck out]
(a) IN GENERAL- The Secretary shall--
[<-Struck out]
(1) on a continuing basis,
[<-Struck
out]
(2) upon a request from the Office of Technology
Evaluation, or
[<-Struck out]
(3) upon receipt of a petition filed by an
interested party,
[<-Struck out]
review and determine the foreign availability and
the mass-market status of any item the export of which is controlled under
this title.
[<-Struck out]
(b) PETITION AND CONSULTATION-
[<-Struck
out]
(1) IN GENERAL- 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, Secretary of State, and other appropriate Government agencies and
with the Office of Technology Evaluation (established pursuant to section
214).
[<-Struck out]
(2) TIME FOR MAKING DETERMINATION- The Secretary
shall, within 6 months after receiving a petition described in subsection
(a)(3), determine whether the item that is the subject of the petition has
foreign availability or mass-market status and shall notify the petitioner
of the determination.
[<-Struck out]
(c) RESULT OF DETERMINATION- In any case in which
the Secretary determines, in accordance with procedures and criteria which the
Secretary shall by regulation establish, that an item described in subsection
(a) has--
[<-Struck out]
(1) a foreign availability status, or
[<-Struck out]
(2) a mass-market status,
[<-Struck
out]
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, or takes action under section 309, with respect to the item in that
30-day period.
[<-Struck out]
(d) CRITERIA FOR DETERMINING FOREIGN AVAILABILITY
AND MASS-MARKET STATUS-
[<-Struck out]
(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)--
[<-Struck out]
(A) is available to controlled countries from
sources outside the United States, including countries that participate
with the United States in multilateral export controls;
[<-Struck out]
(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
[<-Struck out]
(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.
[<-Struck
out]
(2) MASS-MARKET STATUS-
[<-Struck
out]
(A) IN GENERAL- In determining whether an item
has mass-market status under this subtitle, the Secretary shall consider
the following criteria with respect to the item (or a substantially
identical or directly competitive item):
[<-Struck out]
(i) The production and availability for sale
in a large volume to multiple potential purchasers.
[<-Struck
out]
(ii) The widespread distribution through
normal commercial channels, such as retail stores, direct marketing
catalogues, electronic commerce, and other channels.
[<-Struck
out]
(iii) The conduciveness to shipment and
delivery by generally accepted commercial means of transport.
[<-Struck out]
(iv) The use for the item's normal intended
purpose without substantial and specialized service provided by the
manufacturer, distributor, or other third party.
[<-Struck
out]
(B) DETERMINATION BY SECRETARY- If the
Secretary finds that the item (or a substantially identical or directly
competitive item) meets the criteria set forth in subparagraph (A), the
Secretary shall determine that the item has mass-market status.
[<-Struck out]
(3) SPECIAL RULES- For purposes of this
subtitle--
[<-Struck out]
(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.
[<-Struck
out]
(B) DIRECTLY COMPETITIVE ITEM-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck
out]
SEC. 212. PRESIDENTIAL SET-ASIDE OF FOREIGN
AVAILABILITY DETERMINATION.
[<-Struck out]
(a) CRITERIA FOR PRESIDENTIAL SET-ASIDE-
[<-Struck out]
(1) GENERAL CRITERIA-
[<-Struck
out]
(A) IN GENERAL- If the President determines
that--
[<-Struck out]
(i)(I) decontrolling or failing to control
an item constitutes a threat to the national security of the United
States, and export controls on the item would advance the national
security interests of the United States, and
[<-Struck
out]
(II) there is a high probability that the
foreign availability of an item will be eliminated through international
negotiations within a reasonable period of time taking into account the
characteristics of the item, or
[<-Struck out]
(ii) failure to control an item would be
contrary to the provisions of section 309,
[<-Struck
out]
the President may set aside the Secretary's
determination of foreign availability status with respect to the item.
[<-Struck out]
(B) NONDELEGATION- The President may not
delegate the authority provided for in this paragraph.
[<-Struck
out]
(2) REPORT TO CONGRESS- The President shall
promptly--
[<-Struck out]
(A) report any set-aside determination
described in paragraph (1), along with the specific reasons why the
determination was made, to the Committee on Banking, Housing, and Urban
Affairs of the Senate and the Committee on International Relations of the
House of Representatives; and
[<-Struck out]
(B) publish the determination in the Federal
Register.
[<-Struck out]
(b) PRESIDENTIAL ACTION IN CASE OF SET-ASIDE-
[<-Struck out]
(1) IN GENERAL-
[<-Struck out]
(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.
[<-Struck
out]
(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.
[<-Struck
out]
(2) PERIODIC REVIEW OF DETERMINATION- The
President shall review a determination described in subsection (a) at least
every 6 months. Promptly after each review is completed, the Secretary shall
submit to the committees of Congress referred to in paragraph (1)(B) a
report on the results of the review, together with the status of
international negotiations to eliminate the foreign availability of the
item.
[<-Struck out]
(3) EXPIRATION OF PRESIDENTIAL SET-ASIDE- A
determination by the President described in subsection (a)(1)(A) shall cease
to apply with respect to an item on the earlier of--
[<-Struck
out]
(A) the date that is 6 months after the date
on which the determination is made under subsection (a), if the President
has not commenced international negotiations to eliminate the foreign
availability of the item within that 6-month period;
[<-Struck
out]
(B) the date on which the negotiations
described in paragraph (1) have terminated without achieving an agreement
to eliminate foreign availability;
[<-Struck out]
(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
[<-Struck out]
(D) the date that is 18 months after the date
on which the determination described in subsection (a)(1)(A) is made if
the President has been unable to achieve an agreement to
[<-Struck out][Struck out->] eliminate foreign availability within that 18-month
period.
[<-Struck out]
(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.
[<-Struck out]
SEC. 213. PRESIDENTIAL SET-ASIDE OF MASS-MARKET
STATUS DETERMINATION.
[<-Struck out]
(a) CRITERIA FOR PRESIDENTIAL SET-ASIDE-
[<-Struck out]
(1) GENERAL CRITERIA- If the President
determines that--
[<-Struck out]
(A)(i) decontrolling or failing to control an
item constitutes a serious threat to the national security of the United
States, and
[<-Struck out]
(ii) export controls on the item would advance
the national security interests of the United States, or
[<-Struck out]
(B) failure to control an item would be
contrary to the provisions of section 309,
[<-Struck
out]
the President may set aside the Secretary's
determination of mass-market status with respect to the item.
[<-Struck out]
(2) NONDELEGATION- The President may not
delegate the authority provided for in this subsection.
[<-Struck
out]
(b) PRESIDENTIAL ACTION IN CASE OF SET-ASIDE-
[<-Struck out]
(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 report the
determination, along with the specific reasons why the determination was
made, to the Committee on Banking, Housing, and Urban Affairs of the Senate
and the Committee on International Relations of the House of
Representatives, and shall publish notice of the determination in the
Federal Register not later than 30 days after the Secretary publishes notice
of the Secretary's determination that an item has mass-market status.
[<-Struck out]
(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.
[<-Struck out]
SEC. 214. OFFICE OF TECHNOLOGY EVALUATION.
[<-Struck out]
(a) IN GENERAL-
[<-Struck out]
(1) ESTABLISHMENT OF OFFICE- 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,
coordinating, and analyzing all the necessary information in order for the
Secretary to make determinations of foreign availability and mass-market
status under this Act.
[<-Struck out]
(2) STAFF- The Secretary shall ensure that the
Office include persons with the training, expertise and experience in
economic analysis, the defense industrial base, technological developments,
national security, and foreign policy export controls to carry out the
responsibilities set forth in subsection (b) of this section. In addition to
employees of the Department of Commerce, the Secretary may accept on
nonreimbursable detail to the Office, employees of the Departments of
Defense, State, and Energy and other departments and agencies as
appropriate.
[<-Struck out]
(b) RESPONSIBILITIES- The Office shall be
responsible for--
[<-Struck out]
(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;
[<-Struck out]
(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;
[<-Struck
out]
(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;
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck out]
(6) conducting assessments of the impact of
United States export control policies on--
[<-Struck out]
(A) United States industrial sectors critical
to the national security interests of the United States; and
[<-Struck out]
(B) the United States economy in general.
[<-Struck out]
(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
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.
[<-Struck out]
(d) SHARING OF INFORMATION- Each department or
agency of the United States, including any intelligence
[<-Struck
out][Struck out->] agency, and all contractors with any such department
or agency, shall, consistent with the need to protect intelligence sources and
methods, furnish information to the Office concerning foreign availability and
the mass-market status of items subject to export controls under this Act.
[<-Struck out]
TITLE III--FOREIGN POLICY EXPORT CONTROLS
[<-Struck out]
SEC. 301. AUTHORITY FOR FOREIGN POLICY EXPORT
CONTROLS.
[<-Struck out]
(a) AUTHORITY-
[<-Struck out]
(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.
[<-Struck
out]
(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.
[<-Struck
out]
(b) PURPOSES- The purposes of foreign policy
export controls are the following:
[<-Struck out]
(1) To promote the foreign policy objectives of
the United States, consistent with the purposes of this section and the
provisions of this Act.
[<-Struck out]
(2) To promote international peace, stability,
and respect for fundamental human rights.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(d) CONTRACT SANCTITY-
[<-Struck out]
(1) IN GENERAL- The President may not prohibit
the export of any item under this title if that item is to be exported--
[<-Struck out]
(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
[<-Struck
out]
(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.
[<-Struck out]
(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--
[<-Struck out]
(A) there is a serious threat to a foreign
policy interest of the United States;
[<-Struck out]
(B) the prohibition of exports under each
binding contract, agreement, commitment, license, or authorization will be
instrumental in remedying the situation posing the serious threat; and
[<-Struck out]
(C) the export controls will be in effect only
as long as the serious threat exists.
[<-Struck out]
SEC. 302. PROCEDURES FOR IMPOSING CONTROLS.
[<-Struck out]
(a) NOTICE-
[<-Struck out]
(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--
[<-Struck out]
(A) a notice of intent to do so; and
[<-Struck out]
(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.
[<-Struck out]
(2) PURPOSES OF NOTICE- The purposes of the
notice are--
[<-Struck out]
(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
[<-Struck out]
(B) to provide an opportunity for negotiations
to achieve the purposes set forth in section 301(b).
[<-Struck
out]
(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.
[<-Struck out]
(c) CONSULTATION-
[<-Struck out]
(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.
[<-Struck out]
(2) CLASSIFIED CONSULTATION- The consultations
described in paragraph (1) may be conducted on a classified basis if the
Secretary considers it necessary.
[<-Struck out]
SEC. 303. CRITERIA FOR FOREIGN POLICY EXPORT
CONTROLS.
[<-Struck out]
Each export control imposed by the President under
this title shall--
[<-Struck out]
(1) have clearly stated and specific United
States foreign policy objectives;
[<-Struck out]
(2) have objective standards for evaluating the
success or failure of the export control;
[<-Struck out]
(3) include an assessment by the President
that--
[<-Struck out]
(A) the export control is likely to achieve
such objectives and the expected time for achieving the objectives; and
[<-Struck out]
(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;
[<-Struck out]
(4) be targeted narrowly; and
[<-Struck out]
(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.
[<-Struck out]
SEC. 304. PRESIDENTIAL REPORT BEFORE IMPOSITION OF
CONTROL.
[<-Struck out]
(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.
[<-Struck out]
(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--
[<-Struck out]
(1) any diplomatic and other steps that the
United States has taken to accomplish the intended objective of the proposed
export control;
[<-Struck out]
(2) unilateral export controls imposed, and
other measures taken, by other countries to achieve the intended objective
of the proposed export control;
[<-Struck out]
(3) the likelihood of multilateral adoption of
comparable export controls;
[<-Struck out]
(4) alternative measures to promote the same
objectives and the likelihood of their potential success;
[<-Struck out]
(5) any United States obligations under
international trade agreements, treaties, or other international
arrangements, with which the proposed export control may conflict;
[<-Struck out]
(6) the likelihood that the proposed export
control could lead to retaliation against United States interests;
[<-Struck out]
(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
[<-Struck out]
(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.
[<-Struck out]
SEC. 305. IMPOSITION OF CONTROLS.
[<-Struck out]
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 .
[<-Struck out]
SEC. 306. DEFERRAL AUTHORITY.
[<-Struck
out]
(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--
[<-Struck out]
(1) the President determines that a deferral of
compliance with the requirement is in the national interest of the United
States; and
[<-Struck out]
(2) the requirement is satisfied not later than
60 days after the date on which the export control is imposed under this
title.
[<-Struck out]
(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.
[<-Struck out]
SEC. 307. REVIEW, RENEWAL, AND TERMINATION.
[<-Struck out]
(a) RENEWAL AND TERMINATION-
[<-Struck
out]
(1) IN GENERAL- Any export control imposed under
this title shall terminate on March 31 of each renewal year unless the
President renews the export control on or before such date. For purposes of
this section, the term `renewal year' means 2003 and every 2 years
thereafter.
[<-Struck out]
(2) EXCEPTION- This section shall not apply to
an export control imposed under this title that--
[<-Struck
out]
(A) is required by law;
[<-Struck
out]
(B) is targeted against any country designated
as a country supporting international terrorism pursuant to section 310;
or
[<-Struck out]
(C) has been in effect for less than 1 year as
of February 1 of a renewal year.
[<-Struck out]
(b) REVIEW-
[<-Struck out]
(1) IN GENERAL- Not later than February 1 of
each renewal year, the President shall review all export controls in effect
under this title.
[<-Struck out]
(2) CONSULTATION-
[<-Struck out]
(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.
[<-Struck out]
(B) CLASSIFIED CONSULTATION- The consultations
may be conducted on a classified basis if the Secretary considers it
necessary.
[<-Struck out]
(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.
[<-Struck
out]
(c) REPORT TO CONGRESS-
[<-Struck
out]
(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.
[<-Struck
out]
(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:
[<-Struck out]
(A) A clearly stated explanation of the
specific United States foreign policy objective that the existing export
control was intended to achieve.
[<-Struck out]
(B) An assessment of--
[<-Struck
out]
(i) the extent to which the existing export
control achieved its objectives before renewal based on the objective
criteria established for evaluating the export control; and
[<-Struck out]
(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.
[<-Struck out]
(C) An updated description and assessment of--
[<-Struck out]
(i) each of the criteria described in
section 303, and
[<-Struck out]
(ii) each matter required to be reported
under section 304(b) (1) through (8).
[<-Struck
out]
(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.
[<-Struck out]
SEC. 308. TERMINATION OF CONTROLS UNDER THIS TITLE.
[<-Struck out]
(a) IN GENERAL- Notwithstanding any other
provision of law, the President--
[<-Struck out]
(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
[<-Struck out]
(2) may terminate any export control imposed
under this title that is not required by law at any time.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
SEC. 309. COMPLIANCE WITH INTERNATIONAL OBLIGATIONS.
[<-Struck out]
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 or commitments
of the United States under resolutions of the United Nations and under
treaties, or other international agreements and arrangements, to which the
United States is a party.
[<-Struck out]
SEC. 310. DESIGNATION OF COUNTRIES SUPPORTING
INTERNATIONAL TERRORISM.
[<-Struck out]
(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--
[<-Struck out]
(1) the government of such country has
repeatedly provided support for acts of international terrorism; and
[<-Struck out]
(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.
[<-Struck
out]
(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).
[<-Struck out]
(c) DETERMINATIONS REGARDING REPEATED SUPPORT-
Each determination of the Secretary of State under subsection (a)(1),
including each determination in
[<-Struck out][Struck out->] effect on the date of the enactment of the
Antiterrorism and Arms Export Amendments Act of 1989, shall be published in the
Federal Register.
[<-Struck out]
(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--
[<-Struck out]
(1) before the proposed rescission would take
effect, a report certifying that--
[<-Struck out]
(A) there has been a fundamental change in the
leadership and policies of the government of the country concerned;
[<-Struck out]
(B) that government is not supporting acts of
international terrorism; and
[<-Struck out]
(C) that government has provided assurances
that it will not support acts of international terrorism in the future; or
[<-Struck out]
(2) at least 45 days before the proposed
rescission would take effect, a report justifying the rescission and
certifying that--
[<-Struck out]
(A) the government concerned has not provided
any support for international terrorism during the preceding 6-month
period; and
[<-Struck out]
(B) the government concerned has provided
assurances that it will not support acts of international terrorism in the
future.
[<-Struck out]
(e) INFORMATION TO BE INCLUDED IN NOTIFICATION-
The Secretary and the Secretary of State shall include in the notification
required by subsection (b)--
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck out][Struck out->] a description of the manner in which such country or
organization intends to use the item;
[<-Struck out]
(3) the reasons why the proposed export or
transfer is in the national interest of the United States;
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck out]
(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.
[<-Struck out]
TITLE IV--EXEMPTION FOR AGRICULTURAL
COMMODITIES, MEDICINE, AND MEDICAL SUPPLIES
[<-Struck
out]
SEC. 401. EXEMPTION FOR AGRICULTURAL COMMODITIES,
MEDICINE, AND MEDICAL SUPPLIES.
[<-Struck out]
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.
[<-Struck
out]
SEC. 402. TERMINATION OF EXPORT CONTROLS REQUIRED BY
LAW.
[<-Struck out]
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.
[<-Struck out]
SEC. 403. EXCLUSIONS.
[<-Struck out]
Sections 401 and 402 do not apply to the
following:
[<-Struck out]
(1) The export of agricultural commodities,
medicine, and medical supplies that are subject to national security export
controls under title II or are listed on the United States Munitions List
established under section 38 of the Arms Export Control Act (22 U.S.C.
2778).
[<-Struck out]
(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.
[<-Struck out]
TITLE V--PROCEDURES FOR EXPORT LICENSES AND
INTERAGENCY DISPUTE RESOLUTION
[<-Struck out]
SEC. 501. EXPORT LICENSE PROCEDURES.
[<-Struck out]
(a) RESPONSIBILITY OF THE SECRETARY-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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:
[<-Struck out]
(A) The characteristics of the controlled
item.
[<-Struck out]
(B) The threat to--
[<-Struck
out]
(i) the national security interests of the
United States from items controlled under title II of this Act; or
[<-Struck out]
(ii) the foreign policy of the United States
from items controlled under title III of this Act.
[<-Struck
out]
(C) The country tier designation of the
country to which a controlled item is to be exported pursuant to section
203.
[<-Struck out]
(D) The risk of export diversion or misuse
by--
[<-Struck out]
(i) the exporter;
[<-Struck
out]
(ii) the method of export;
[<-Struck out]
(iii) the end-user;
[<-Struck
out]
(iv) the country where the end-user is
located; and
[<-Struck out]
(v) the end-use.
[<-Struck
out]
(E) Risk mitigating factors including, but not
limited to--
[<-Struck out]
(i) changing the characteristics of the
controlled item;
[<-Struck out]
(ii) after-market monitoring by the
exporter; and
[<-Struck out]
(iii) post-shipment verification.
[<-Struck out]
(b) INITIAL SCREENING-
[<-Struck out]
(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.
[<-Struck out]
(2) INITIAL PROCEDURES-
[<-Struck
out]
(A) IN GENERAL- Not later than 9 days after
receiving any license application, the Secretary shall--
[<-Struck out]
(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;
[<-Struck out]
(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 Secretary of Defense, the Secretary of State, and the
heads of and other departments and agencies the Secretary considers
appropriate;
[<-Struck out]
(iii) ensure that the classification stated
on the application for the export items is correct; and
[<-Struck out]
(iv) return the application if a license is
not required.
[<-Struck out]
(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.
[<-Struck out]
(3) WITHDRAWAL OF APPLICATION- An applicant may,
by written notice to the Secretary, withdraw an application at any time
before final action.
[<-Struck out]
(c) ACTION BY OTHER DEPARTMENTS AND AGENCIES-
[<-Struck out]
(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.
[<-Struck out]
(2) RESPONSIBILITY OF REFERRAL DEPARTMENTS AND
AGENCIES- The Secretary of Defense, the Secretary of State, and the heads of
other reviewing departments and agencies shall take all necessary actions 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.
[<-Struck out]
(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.
[<-Struck out]
(4) TIME PERIOD FOR ACTION BY REFERRAL
DEPARTMENTS AND AGENCIES- Within 30 days after the Secretary refers an
application under this section, each department or agency to which an
application has been referred shall provide the Secretary with a
recommendation either to approve the license or to deny the license. A
recommendation that the Secretary deny a license shall include a statement
of reasons for the recommendation that are consistent with the provisions of
this title, and shall cite both the specific statutory and regulatory basis
for the recommendation. A department or agency that fails to provide a
recommendation in accordance with this paragraph within that 30-day period
shall be deemed to have no objection to the decision of the Secretary on the
application.
[<-Struck out]
(d) ACTION BY THE SECRETARY- Not later than 30
days after the date the application is referred, the Secretary shall--
[<-Struck out]
(1) if there is agreement among the referral
departments and agencies to issue or deny the license--
[<-Struck
out]
(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
[<-Struck out]
(B) notify the applicant of the intention to
deny the license; or
[<-Struck out]
(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 provided for in
section 502.
[<-Struck out]
(e) CONSEQUENCES OF APPLICATION DENIAL-
[<-Struck out]
(1) IN GENERAL- If a determination is made to
deny a license, the applicant shall be informed in writing by the Secretary
of--
[<-Struck out]
(A) the determination;
[<-Struck
out]
(B) the specific statutory and regulatory
bases for the proposed denial;
[<-Struck out]
(C) what, if any, modifications to, or
restrictions on, the items for which the license
[<-Struck
out][Struck out->] 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;
[<-Struck out]
(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
[<-Struck out]
(E) the availability of appeal procedures.
[<-Struck out]
(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.
[<-Struck out]
(f) APPEALS AND OTHER ACTIONS BY APPLICANT-
[<-Struck out]
(1) IN GENERAL- The Secretary shall establish
appropriate procedures for an applicant to appeal to the Secretary the
denial of an application or other administrative action under this Act. In
any case in which the Secretary proposes to reverse the decision with
respect to the application, the appeal under this subsection shall be
handled in accordance with the interagency dispute resolution process
provided for in section 502(b)(3).
[<-Struck out]
(2) ENFORCEMENT OF TIME LIMITS-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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:
[<-Struck out]
(1) AGREEMENT OF THE APPLICANT- Delays upon
which the Secretary and the applicant mutually agree.
[<-Struck
out]
(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--
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck out]
(C) the analysis of the result of the
prelicense check is completed by the Secretary within 5 days.
[<-Struck out]
(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--
[<-Struck out]
(A) the request for such assurances is sent to
the Secretary of State within 5 days after the determination that the
assurances are required;
[<-Struck out]
(B) the Secretary of State initiates the
request of the relevant government within 10 days thereafter; and
[<-Struck out]
(C) the license is issued within 5 days after
the Secretary receives the requested assurances.
[<-Struck
out]
(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.
[<-Struck out]
(5) MULTILATERAL REVIEW- Multilateral review of
a license application to the extent that such multilateral review is
required by a relevant multilateral regime.
[<-Struck out]
(6) CONGRESSIONAL NOTIFICATION- Such time as is
required for mandatory congressional notifications under this Act.
[<-Struck out]
(7) CONSULTATIONS- Consultation with foreign
governments, if such consultation is provided for by a relevant multilateral
regime as a precondition for approving a license.
[<-Struck
out]
(h) CLASSIFICATION REQUESTS AND OTHER INQUIRIES-
[<-Struck out]
(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
[<-Struck out][Struck out->] 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.
[<-Struck out]
(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.
[<-Struck out]
SEC. 502. INTERAGENCY DISPUTE RESOLUTION PROCESS.
[<-Struck out]
(a) IN GENERAL- All license applications on which
agreement cannot be reached shall be referred to the interagency dispute
resolution process for decision.
[<-Struck out]
(b) INTERAGENCY DISPUTE RESOLUTION PROCESS-
[<-Struck out]
(1) INITIAL RESOLUTION- The Secretary shall
establish, select the chairperson of, and determine procedures for an
interagency committee to review initially all license applications described
in subsection (a) with respect to which the Secretary and any of the
referral departments and agencies are not in agreement. The chairperson
shall consider the positions of all the referral departments and agencies
(which shall be included in the minutes described in subsection (c)(2)) and
make a decision on the license application, including appropriate revisions
or conditions thereto.
[<-Struck out]
(2) INTELLIGENCE COMMUNITY- The analytic product
of the intelligence community should be fully considered with respect to any
proposed license under this title.
[<-Struck out]
(3) FURTHER RESOLUTION- The President shall
establish additional levels for review or appeal of any matter that cannot
be resolved pursuant to the process described in paragraph (1). Each such
review shall--
[<-Struck out]
(A) provide for decision-making based on the
majority vote of the participating departments and agencies;
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck out]
(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.
[<-Struck out]
(c) FINAL ACTION-
[<-Struck out]
(1) IN GENERAL- Once a final decision is made
under subsection (b), the Secretary shall promptly--
[<-Struck
out]
(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
[<-Struck out]
(B) notify the applicant of the intention to
deny the application.
[<-Struck out]
(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.
[<-Struck out]
TITLE VI--INTERNATIONAL ARRANGEMENTS; FOREIGN
BOYCOTTS; SANCTIONS; AND ENFORCEMENT
[<-Struck out]
SEC. 601. INTERNATIONAL ARRANGEMENTS.
[<-Struck out]
(a) MULTILATERAL EXPORT CONTROL REGIMES-
[<-Struck out]
(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.
[<-Struck out]
(2) PARTICIPATION IN EXISTING REGIMES- Congress
encourages the United States to continue its active participation in and to
strengthen existing multilateral export control regimes.
[<-Struck
out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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:
[<-Struck out]
(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.
[<-Struck out]
(2) EFFECTIVE ENFORCEMENT AND COMPLIANCE- The
regime promotes enforcement and compliance with the regime's rules and
guidelines.
[<-Struck out]
(3) PUBLIC UNDERSTANDING- The regime makes an
effort to enhance public understanding of
[<-Struck out][Struck out->] the purpose and procedures of the multilateral export
control regime.
[<-Struck out]
(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.
[<-Struck out]
(5) ENHANCED COOPERATION WITH REGIME NONMEMBERS-
There is agreement among the members of the multilateral export control
regime to--
[<-Struck out]
(A) cooperate with governments outside the
regime to restrict the export of items controlled by such regime; and
[<-Struck out]
(B) establish an ongoing mechanism in the
regime to coordinate planning and implementation of export control
measures related to such cooperation.
[<-Struck out]
(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.
[<-Struck out]
(7) COMMON LIST OF CONTROLLED ITEMS- There is
agreement on a common list of items controlled by the multilateral export
control regime.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(10) HARMONIZATION OF LICENSE APPROVAL
PROCEDURES- There is harmonization among the members of the regime of their
national export license approval procedures and practices.
[<-Struck out]
(11) UNDERCUTTING- There is a limit with respect
to when members of a multilateral export control regime--
[<-Struck out]
(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
[<-Struck out]
(B) approve exports to a particular end user
to which the United States has denied export license for a similar item.
[<-Struck out]
(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:
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(3) ENFORCEMENT- The enforcement mechanism
provides authority for trained enforcement officers to investigate and
prevent illegal exports.
[<-Struck out]
(4) DOCUMENTATION- There is a system of export
control documentation and verification with respect to controlled items.
[<-Struck out]
(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.
[<-Struck out]
(6) RESOURCES- The member has devoted adequate
resources to administer effectively the authorities, systems, mechanisms,
and procedures described in paragraphs (1) through (5).
[<-Struck
out]
(e) OBJECTIVES REGARDING MULTILATERAL EXPORT
CONTROL REGIMES- The President shall seek to achieve the following objectives
with regard to multilateral export control regimes:
[<-Struck
out]
(1) STRENGTHEN EXISTING REGIMES- Strengthen
existing multilateral export control regimes--
[<-Struck
out]
(A) by creating a requirement to share
information about export license applications among members before a
member approves an export license; and
[<-Struck out]
(B) harmonizing national export license
approval procedures and practices, including the elimination of
undercutting.
[<-Struck out]
(2) REVIEW AND UPDATE- Review and update
multilateral regime export control lists with other members, taking into
account--
[<-Struck out]
(A) national security concerns;
[<-Struck out]
(B) the controllability of items; and
[<-Struck out]
(C) the costs and benefits of controls.
[<-Struck out]
(3) ENCOURAGE COMPLIANCE BY NONMEMBERS-
Encourage nonmembers of the multilateral export control regime--
[<-Struck out]
(A) to strengthen their national export
control regimes and improve enforcement;
[<-Struck out]
(B) to adhere to the appropriate multilateral
export control regime; and
[<-Struck out]
(C) not to undermine an existing multilateral
export control regime by exporting controlled items in a manner
inconsistent with the guidelines of the regime.
[<-Struck
out]
(f) TRANSPARENCY OF MULTILATERAL EXPORT CONTROL
REGIMES-
[<-Struck out]
(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 and post on the
Department of Commerce website the following information with respect to the
regime:
[<-Struck out]
(A) The purposes of the regime.
[<-Struck out]
(B) The members of the regime.
[<-Struck out]
(C) The export licensing policy of the regime.
[<-Struck out]
(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.
[<-Struck out]
(E) Any countries, end uses, or end users that
are subject to the export controls of the regime.
[<-Struck
out]
(F) Rules of interpretation.
[<-Struck out]
(G) Major policy actions.
[<-Struck
out]
(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.
[<-Struck out]
(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 and post on the Department of Commerce website the
information described in subparagraphs (A) through (H) of paragraph (1) with
respect to the regime.
[<-Struck out]
(3) PUBLICATION OF CHANGES- Not later than 60
days after a multilateral export control regime adopts any change in the
information published under this subsection, the Secretary shall, to the
extent not inconsistent with the arrangements under the regime or the
national interest, publish such changes in the Federal Register and post
such changes on the Department of Commerce website.
[<-Struck
out]
(g) SUPPORT OF OTHER COUNTRIES' EXPORT CONTROL
SYSTEMS- The Secretary is encouraged to continue to--
[<-Struck
out]
(1) participate in training of, and provide
training to, officials of other countries on the principles and procedures
for implementing effective export controls; and
[<-Struck
out]
(2) participate in any such training provided by
other departments and agencies of the United States.
[<-Struck
out]
SEC. 602. FOREIGN BOYCOTTS.
[<-Struck
out]
(a) PURPOSES- The purposes of this section are as
follows:
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(b) PROHIBITIONS AND EXCEPTIONS-
[<-Struck out]
(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
[<-Struck
out][Struck out->] to the United States and is not itself the object of
any form of boycott pursuant to United States law or regulation:
[<-Struck out]
(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).
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck
out]
(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.
[<-Struck out]
(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.
[<-Struck
out]
(2) EXCEPTIONS- Regulations issued pursuant to
paragraph (1) shall provide exceptions for--
[<-Struck out]
(A) compliance, or agreement to comply, with
requirements--
[<-Struck out]
(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
[<-Struck
out]
(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;
[<-Struck out]
(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;
[<-Struck out]
(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;
[<-Struck out]
(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;
[<-Struck
out]
(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
[<-Struck out]
(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
[<-Struck out][Struck out->] 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.
[<-Struck out]
(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).
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(c) ADDITIONAL REGULATIONS AND REPORTS-
[<-Struck out]
(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).
[<-Struck out]
(2) REPORTS BY UNITED STATES PERSONS- The
regulations shall require that any United States person receiving a request
to furnish information,
[<-Struck out][Struck out->] 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).
[<-Struck out]
(d) PREEMPTION- The provisions of this section and
the regulations issued under this section shall preempt any law, rule, or
regulation that--
[<-Struck out]
(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
[<-Struck out]
(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.
[<-Struck out]
SEC. 603. PENALTIES.
[<-Struck out]
(a) CRIMINAL PENALTIES-
[<-Struck
out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(b) FORFEITURE OF PROPERTY INTEREST AND PROCEEDS-
[<-Struck out]
(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--
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck
out]
(C) any of that person's property
constituting, or derived from, any proceeds obtained directly or
indirectly as a result of the violation.
[<-Struck out]
(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.
[<-Struck out]
(c) CIVIL PENALTIES; ADMINISTRATIVE SANCTIONS-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(d) PAYMENT OF CIVIL PENALTIES-
[<-Struck out]
(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.
[<-Struck out]
(2) DEFERRAL OR SUSPENSION-
[<-Struck
out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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).
[<-Struck out]
(e) REFUNDS-
[<-Struck out]
(1) AUTHORITY-
[<-Struck out]
(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.
[<-Struck out]
(B) LIMITATION- A civil penalty may not be
refunded under subparagraph (A) later than 2 years after payment of the
penalty.
[<-Struck out]
(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.
[<-Struck out]
(f) EFFECT OF OTHER CONVICTIONS-
[<-Struck out]
(1) DENIAL OF EXPORT PRIVILEGES- Any person
convicted of a violation of--
[<-Struck out]
(A) a provision of this Act or the Export
Administration Act of 1979,
[<-Struck out]
(B) a provision of the International Emergency
Economic Powers Act (50 U.S.C. 1701 et seq.),
[<-Struck
out]
(C) section 793, 794, or 798 of title 18,
United States Code,
[<-Struck out]
(D) section 4(b) of the Internal Security Act
of 1950 (50 U.S.C. 783(b)),
[<-Struck out]
(E) section 38 of the Arms Export Control Act
(22 U.S.C. 2778),
[<-Struck out]
(F) section 16 of the Trading with the Enemy
Act (50 U.S.C. App. 16),
[<-Struck out]
(G) any regulation, license, or order issued
under any provision of law listed in subparagraph (A), (B), (C), (D), (E),
or (F),
[<-Struck out]
(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,
[<-Struck
out]
(I) section 175 of title 18, United States
Code,
[<-Struck out]
(J) a provision of the Atomic Energy Act (42
U.S.C. 201 et seq.),
[<-Struck out]
(K) section 831 of title 18, United States
Code, or
[<-Struck out]
(L) section 2332a of title 18, United States
Code,
[<-Struck out]
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.
[<-Struck out]
(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.
[<-Struck out]
(g) STATUTE OF LIMITATIONS-
[<-Struck
out]
(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.
[<-Struck out]
(2) EXCEPTION-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(h) VIOLATIONS DEFINED BY REGULATION- Nothing in
this section shall limit the authority of the Secretary to define by
regulation violations under this Act.
[<-Struck out]
(i) CONSTRUCTION- Nothing in subsection (c), (d),
(e), (f), or (g) limits--
[<-Struck out]
(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;
[<-Struck
out]
(2) the authority to compromise and settle
administrative proceedings brought with respect to any such violation; or
[<-Struck out]
(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)).
[<-Struck out]
SEC. 604. MULTILATERAL EXPORT CONTROL REGIME
VIOLATION SANCTIONS.
[<-Struck out]
(a) IMPOSITION OF SANCTIONS-
[<-Struck
out]
(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--
[<-Struck out]
(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
[<-Struck out]
(B) such violation has substantially aided a
country in--
[<-Struck out]
(i) acquiring military significant
capabilities or weapons, if the country is an actual or potential
adversary of the United States;
[<-Struck out]
(ii) acquiring nuclear weapons provided such
country is other than the declared nuclear states of the People's
Republic of China, the Republic of France, the Russian Federation, the
United Kingdom, and the United States;
[<-Struck
out]
(iii) acquiring biological or chemical
weapons; or
[<-Struck out]
(iv) acquiring missiles.
[<-Struck
out]
(2) NOTIFICATION OF CONGRESS- The President
shall notify Congress of each action taken under this section.
[<-Struck out]
(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:
[<-Struck out]
(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.
[<-Struck out]
(2) A prohibition on the importation into the
United States of all items produced by a sanctioned person.
[<-Struck out]
(c) EXCEPTIONS- The President shall not apply
sanctions under this section--
[<-Struck out]
(1) in the case of procurement of defense
items--
[<-Struck out]
(A) under existing contracts or subcontracts,
including the exercise of options for production quantities to satisfy
United States operational military requirements;
[<-Struck
out]
(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
[<-Struck
out]
(C) if the President determines that such
items are essential to the national security under defense coproduction
agreements;
[<-Struck out]
(2) in any case in which such sanctions would
violate United States international obligations including treaties,
agreements, or understandings; or
[<-Struck out]
(3) to--
[<-Struck out]
(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;
[<-Struck
out]
(B) after-market service and replacement parts
including upgrades;
[<-Struck out]
(C) component parts, but not finished
products, essential to United States products or productions; or
[<-Struck out]
(D) information and technology.
[<-Struck out]
(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--
[<-Struck out]
(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
[<-Struck
out]
(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).
[<-Struck out]
(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--
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck out]
(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.
[<-Struck out]
SEC. 605. MISSILE PROLIFERATION CONTROL VIOLATIONS.
[<-Struck out]
(a) VIOLATIONS BY UNITED STATES PERSONS-
[<-Struck out]
(1) SANCTIONS-
[<-Struck out]
(A) IN GENERAL- If the President determines
that a United States person knowingly--
[<-Struck out]
(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,
[<-Struck
out]
(ii) conspires to or attempts to engage in
such export, transfer, or trade, or
[<-Struck out]
(iii) facilitates such export, transfer, or
trade by any other person,
[<-Struck out]
then the President shall impose the applicable
sanctions described in subparagraph (B).
[<-Struck out]
(B) SANCTIONS DESCRIBED- The sanctions which
apply to a United States person under subparagraph (A) are the following:
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck
out]
(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--
[<-Struck
out]
(A) the item is essential to the national
security of the United States; and
[<-Struck out]
(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.
[<-Struck out]
(b) TRANSFERS OF MISSILE EQUIPMENT OR TECHNOLOGY
BY FOREIGN PERSONS-
[<-Struck out]
(1) SANCTIONS-
[<-Struck out]
(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--
[<-Struck
out]
(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,
[<-Struck out]
(ii) conspires to or attempts to engage in
such export, transfer, or trade, or
[<-Struck out]
(iii) facilitates such export, transfer, or
trade by any other person,
[<-Struck out]
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).
[<-Struck
out]
(B) SANCTIONS DESCRIBED- The sanctions which
apply to a foreign person under subparagraph (A) are the following:
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(2) INAPPLICABILITY WITH RESPECT TO MTCR
ADHERENTS- Paragraph (1) does not apply with respect to--
[<-Struck out]
(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
[<-Struck
out]
(B) any export, transfer, or trade of an item
to an end user in a country that is an MTCR adherent.
[<-Struck
out]
(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.
[<-Struck out]
(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
[<-Struck
out][Struck out->] 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.
[<-Struck
out]
(5) WAIVER AND REPORT TO CONGRESS-
[<-Struck out]
(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.
[<-Struck
out]
(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.
[<-Struck out]
(6) ADDITIONAL WAIVER- The President may waive
the imposition of sanctions under paragraph
[<-Struck out][Struck out->] (1) on a person with respect to a product or service
if the President certifies to the Congress that--
[<-Struck out]
(A) the product or service is essential to the
national security of the United States; and
[<-Struck
out]
(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.
[<-Struck out]
(7) EXCEPTIONS- The President shall not apply
the sanction under this subsection prohibiting the importation of the
products of a foreign person--
[<-Struck out]
(A) in the case of procurement of defense
articles or defense services--
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck
out]
(C) to--
[<-Struck out]
(i) spare parts,
[<-Struck
out]
(ii) component parts, but not finished
products, essential to United States products or production,
[<-Struck out]
(iii) routine services and maintenance of
products, to the extent that alternative sources are not readily or
reasonably available, or
[<-Struck out]
(iv) information and technology essential to
United States products or production.
[<-Struck
out]
(c) DEFINITIONS- In this section:
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(4) MTCR ANNEX- The term `MTCR Annex' means the
Guidelines and Equipment and Technology Annex of the MTCR, and any
amendments thereto.
[<-Struck out]
(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.
[<-Struck out]
(6) FOREIGN PERSON- The term `foreign person'
means any person other than a United States person.
[<-Struck
out]
(7) PERSON-
[<-Struck out]
(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.
[<-Struck out]
(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--
[<-Struck out]
(i) all activities of that government
relating to the development or production of any missile equipment or
technology; and
[<-Struck out]
(ii) all activities of that government
affecting the development or production of aircraft, electronics, and
space systems or equipment.
[<-Struck out]
(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.
[<-Struck out]
SEC. 606. CHEMICAL AND BIOLOGICAL WEAPONS
PROLIFERATION SANCTIONS.
[<-Struck out]
(a) IMPOSITION OF SANCTIONS-
[<-Struck
out]
(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--
[<-Struck out]
(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
[<-Struck out]
(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,
[<-Struck
out]
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.
[<-Struck
out]
(2) COUNTRIES, PROJECTS, OR ENTITIES RECEIVING
ASSISTANCE- Paragraph (1) applies in the case of--
[<-Struck
out]
(A) any foreign country that the President
determines has, at any time after the date of enactment of this Act--
[<-Struck out]
(i) used chemical or biological weapons in
violation of international law;
[<-Struck out]
(ii) used lethal chemical or biological
weapons against its own nationals; or
[<-Struck
out]
(iii) made substantial preparations to
engage in the activities described in clause (i) or (ii);
[<-Struck out]
(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
[<-Struck out]
(C) any other foreign country, project, or
entity designated by the President for purposes of this section.
[<-Struck out]
(3) PERSONS AGAINST WHICH SANCTIONS ARE TO BE
IMPOSED- Sanctions shall be imposed pursuant to paragraph (1) on--
[<-Struck out]
(A) the foreign person with respect to which
the President makes the determination described in that paragraph;
[<-Struck out]
(B) any successor entity to that foreign
person;
[<-Struck out]
(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
[<-Struck out]
(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.
[<-Struck
out]
(b) CONSULTATIONS WITH AND ACTIONS BY FOREIGN
GOVERNMENT OF JURISDICTION-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck
out]
(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.
[<-Struck out]
(c) SANCTIONS-
[<-Struck out]
(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:
[<-Struck
out]
(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).
[<-Struck out]
(B) IMPORT SANCTIONS- The importation into the
United States of products produced by any person described in subsection
(a)(3) shall be prohibited.
[<-Struck out]
(2) EXCEPTIONS- The President shall not be
required to apply or maintain sanctions under this section--
[<-Struck out]
(A) in the case of procurement of defense
articles or defense services--
[<-Struck out]
(i) under existing contracts or
subcontracts, including the exercise of options
[<-Struck
out][Struck out->] for production quantities to satisfy United States
operational military requirements;
[<-Struck out]
(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
[<-Struck
out]
(iii) if the President determines that such
articles or services are essential to the national security under
defense coproduction agreements;
[<-Struck out]
(B) to products or services provided under
contracts entered into before the date on which the President publishes
his intention to impose sanctions;
[<-Struck out]
(C) to--
[<-Struck out]
(i) spare parts,
[<-Struck
out]
(ii) component parts, but not finished
products, essential to United States products or production, or
[<-Struck out]
(iii) routine servicing and maintenance of
products, to the extent that alternative sources are not readily or
reasonably available;
[<-Struck out]
(D) to information and technology essential to
United States products or production; or
[<-Struck out]
(E) to medical or other humanitarian items.
[<-Struck out]
(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.
[<-Struck out]
(e) WAIVER-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(f) DEFINITION OF FOREIGN PERSON- For the purposes
of this section, the term `foreign person' means--
[<-Struck out]
(1) an individual who is not a citizen of the
United States or an alien admitted for permanent residence to the United
States; or
[<-Struck out]
(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.
[<-Struck out]
SEC. 607. ENFORCEMENT.
[<-Struck out]
(a) General Authority and Designation-
[<-Struck out]
(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.
[<-Struck out]
(2) General authorities-
[<-Struck
out]
(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 a department or agency
exercising functions under this Act, may exercise the enforcement
authority under paragraph (3).
[<-Struck out]
(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
[<-Struck out][Struck out->] 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.
[<-Struck out]
(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
[<-Struck out][Struck out->] and employees of the Department only with the
concurrence of the Commissioner of Customs or a person designated by the
Commissioner.
[<-Struck out]
(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.
[<-Struck out]
(3) Specific authorities-
[<-Struck
out]
(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:
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(B) ACTIONS BY OFFICE OF EXPORT ENFORCEMENT
AND CUSTOMS SERVICE PERSONNEL-
[<-Struck out]
(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:
[<-Struck out]
(I) Execute any warrant or other process
issued by a court or officer of competent jurisdiction with respect to
the enforcement of this Act.
[<-Struck out]
(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.
[<-Struck out]
(III) Carry firearms.
[<-Struck
out]
(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.
[<-Struck out]
(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:
[<-Struck out]
(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.
[<-Struck out]
(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
[<-Struck out][Struck out->] through the United States in violation of this Act.
[<-Struck out]
(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.
[<-Struck out]
(4) OTHER AUTHORITIES NOT AFFECTED- The
authorities conferred by this section are in addition to any authorities
conferred under other laws.
[<-Struck out]
(b) FORFEITURE-
[<-Struck out]
(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.
[<-Struck out]
(2) APPLICABLE LAWS- Those provisions of law
relating to--
[<-Struck out]
(A) the seizure, summary and judicial
forfeiture, and condemnation of property for violations of the customs
laws;
[<-Struck out]
(B) the disposition of such property or the
proceeds from the sale thereof;
[<-Struck out]
(C) the remission or mitigation of such
forfeitures; and
[<-Struck out]
(D) the compromise of claims,
[<-Struck out]
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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(d) UNDERCOVER INVESTIGATION OPERATIONS-
[<-Struck out]
(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--
[<-Struck
out]
(A) funds made available for export
enforcement under this Act may be used to purchase property, buildings,
and other facilities, and to lease equipment, conveyances, and space
within the United States, without regard to sections 1341 and 3324 of
title 31, United States Code, the third undesignated paragraph under the
heading of `miscellaneous' of the Act of March 3, 1877, (40 U.S.C. 34),
sections 3732(a) and 3741 of the Revised Statutes of the United States (41
U.S.C. 11(a) and 22), subsections (a) and (c) of section 304 of the
Federal Property and Administrative Services Act of 1949 (41 U.S.C. 254
(a) and (c)), and section 305 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 255);
[<-Struck out]
(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;
[<-Struck out]
(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
[<-Struck
out]
(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,
[<-Struck out]
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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(4) Audit and report-
[<-Struck
out]
(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.
[<-Struck out]
(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:
[<-Struck out]
(i) The number of undercover investigative
operations pending as of the end of the period for which such report is
submitted.
[<-Struck out]
(ii) The number of undercover investigative
operations commenced in the 1-year period preceding the period for which
such report is submitted.
[<-Struck out]
(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
[<-Struck
out][Struck out->] each such closed undercover operation, the results
obtained and any civil claims made with respect to the operation.
[<-Struck out]
(5) DEFINITIONS- For purposes of paragraph (4)--
[<-Struck out]
(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
[<-Struck out]
(B) the terms `undercover investigative
operation' and `undercover operation' mean any undercover investigative
operation conducted by the OEE--
[<-Struck out]
(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
[<-Struck out]
(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).
[<-Struck out]
(e) WIRETAPS-
[<-Struck out]
(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.
[<-Struck
out]
(2) CONFORMING AMENDMENT- Section 2516(1) of
title 18, United States Code, is amended by adding at the end the following:
[<-Struck out]
`(q)(i) any violation of, or conspiracy to
violate, the Export Administration Act of 2001 or the Export
Administration Act of 1979.'.
[<-Struck out]
(f) POST-SHIPMENT VERIFICATION-
[<-Struck out]
(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.
[<-Struck out]
(2) REPEAL- Section 1213 of the National Defense
Authorization Act for Fiscal Year 1998 is repealed.
[<-Struck
out]
(g) REFUSAL TO ALLOW POST-SHIPMENT VERIFICATION-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(h) AWARD OF COMPENSATION; PATRIOT PROVISION-
[<-Struck out]
(1) IN GENERAL- If--
[<-Struck
out]
(A) any person, who is not an employee or
officer of the United States, furnishes to a
[<-Struck
out][Struck out->] 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 in which the person furnishing the information has not participated,
and
[<-Struck out]
(B) such information leads to the recovery of
any criminal fine, civil penalty, or forfeiture,
[<-Struck
out]
the Secretary and the Commissioner of Customs,
may, in the sole discretion of the Secretary or the Commissioner, award and
pay an amount that does not exceed 25 percent of the net amount recovered.
[<-Struck out]
(2) DOLLAR LIMITATION- The amount awarded and
paid to any person under this section may not exceed $250,000 for any case.
[<-Struck out]
(3) SOURCE OF PAYMENT- The amount paid under
this section shall be paid out of any penalties, forfeitures, or
appropriated funds.
[<-Struck out]
(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.
[<-Struck out]
(j) END-USE VERIFICATION AUTHORIZATION-
[<-Struck out]
(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.
[<-Struck out]
(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:
[<-Struck out]
(A) The activities of the overseas
investigators of the Department.
[<-Struck out]
(B) The types of goods and technologies that
were subject to end-use verification.
[<-Struck out]
(C) The ability of the Department's
investigators to detect the illegal transfer of high risk, dual-use goods
and technologies.
[<-Struck out]
(3) ENHANCEMENTS- In addition to the
authorization provided in paragraph (1), there is authorized to be
appropriated for the Department of Commerce $5,000,000 to enhance its
program for verifying the end use of items subject to controls under this
Act.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck
out]
(n) AUTHORIZATION FOR BUREAU OF EXPORT
ADMINISTRATION- The Secretary may authorize, without fiscal year limitation,
the expenditure of funds transferred to, paid to, received by, or made
available to the Bureau of Export Administration as a reimbursement in
accordance with section 9703 of title 31, United States Code (as added by
Public Law 102-393). The Secretary may also authorize, without fiscal year
limitation, the expenditure of funds transferred to, paid to, received by, or
made available to the Bureau of Export Administration as a reimbursement from
the Department of Justice Assets Forfeiture Fund in accordance with section
524 of title 28, United States Code.
[<-Struck out]
(o) AMENDMENTS TO TITLE 31-
[<-Struck
out]
(1) Section 9703(a) of title 31, United States
Code (as added by Public Law 102-393) is amended by striking `or the United
States Coast Guard' and inserting `, the United States Coast Guard, or the
Bureau of Export Administration of the Department of Commerce'.
[<-Struck out]
(2) Section 9703(a)(2)(B)(i) of title 31, United
States Code is amended (as added by Public Law 102-393)--
[<-Struck out]
(A) by striking `or' at the end of subclause
(I);
[<-Struck out]
(B) by inserting `or' at the end of subclause
(II); and
[<-Struck out]
(C) by inserting at the end, the following new
subclause:
[<-Struck out]
`(III) a violation of the Export
Administration Act of 1979, the Export Administration Act of 2001, or
any regulation, license, or order issued under those Acts;'.
[<-Struck out]
(3) Section 9703(p)(1) of title 31, United
States Code (as added by Public Law 102-393) is amended by adding at the end
the following: `In addition, for purposes of this section, the Bureau of
Export Administration of the Department of Commerce shall be considered to
be a Department of the Treasury law enforcement organization.'.
[<-Struck out]
(p) AUTHORIZATION FOR LICENSE REVIEW OFFICERS-
[<-Struck out]
(1) IN GENERAL- There is authorized to be
appropriated to the Department of Commerce $2,000,000 to hire additional
license review officers.
[<-Struck out]
(2) TRAINING- There is authorized to be
appropriated to the Department of Commerce $2,000,000 to conduct
professional training of license review officers, auditors, and
investigators conducting post-shipment verification checks. These funds
shall be used to--
[<-Struck out]
(A) train and certify, through a formal
program, new employees entering these positions for the first time; and
[<-Struck out]
(B) the ongoing professional training of
experienced employees on an as needed basis.
[<-Struck
out]
(q) AUTHORIZATION- There are authorized to be
appropriated to the Department of Commerce to carry out the purposes of this
Act--
[<-Struck out]
(1) $72,000,000 for the fiscal year 2002, of
which no less than $27,701,000 shall be used for compliance and enforcement
activities;
[<-Struck out]
(2) $73,000,000 for the fiscal year 2003, of
which no less than $28,312,000 shall be used for compliance and enforcement
activities;
[<-Struck out]
(3) $74,000,000 for the fiscal year 2004, of
which no less than $28,939,000 shall be used for compliance and enforcement
activities;
[<-Struck out]
(4) $76,000,000 for the fiscal year 2005, of
which no less than $29,582,000 shall be used for compliance and enforcement
activities; and
[<-Struck out]
(5) such additional amounts, for each such
fiscal year, as may be necessary for increases in salary, pay, retirement,
other employee benefits authorized by law, and other nondiscretionary costs.
[<-Struck out]
SEC. 608. ADMINISTRATIVE PROCEDURE.
[<-Struck out]
(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.
[<-Struck out]
(b) PROCEDURES RELATING TO CIVIL PENALTIES AND
SANCTIONS-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(d) IMPOSITION OF TEMPORARY DENIAL ORDERS-
[<-Struck out]
(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.
[<-Struck out]
(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--
[<-Struck out]
(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
[<-Struck out]
(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.
[<-Struck
out]
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.
[<-Struck out]
(3) COURT APPEALS- An order of the Secretary
affirming, in whole or in part, the issuance or
[<-Struck
out][Struck out->] 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.
[<-Struck out]
(e) LIMITATIONS ON REVIEW OF CLASSIFIED
INFORMATION- Any classified information that is included in the administrative
record that is subject to review pursuant to subsection (b)(1) or (d)(3) may
be reviewed by the court only on an ex parte basis and in camera.
[<-Struck out]
TITLE VII--EXPORT CONTROL AUTHORITY AND
REGULATIONS
[<-Struck out]
SEC. 701. EXPORT CONTROL AUTHORITY AND REGULATIONS.
[<-Struck out]
(a) EXPORT CONTROL AUTHORITY-
[<-Struck
out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(b) UNDER SECRETARY OF COMMERCE; ASSISTANT
SECRETARIES-
[<-Struck out]
(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
[<-Struck out][Struck out->] 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.
[<-Struck out]
(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:
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(c) ISSUANCE OF REGULATIONS-
[<-Struck
out]
(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.
[<-Struck out]
(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.
[<-Struck out]
SEC. 702. CONFIDENTIALITY OF INFORMATION.
[<-Struck out]
(a) EXEMPTIONS FROM DISCLOSURE-
[<-Struck out]
(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.
[<-Struck out]
(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--
[<-Struck out]
(A) the export license or other export
authorization itself,
[<-Struck out]
(B) classification requests described in
section 501(h),
[<-Struck out]
(C) information or evidence obtained in the
course of any investigation,
[<-Struck out]
(D) information obtained or furnished under
title VII in connection with any international agreement, treaty, or other
obligation, and
[<-Struck out]
(E) information obtained in making the
determinations set forth in section 211 of this Act,
[<-Struck
out]
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.
[<-Struck out]
(b) INFORMATION TO CONGRESS AND GAO-
[<-Struck out]
(1) IN GENERAL- Nothing in this title shall be
construed as authorizing the withholding of information from Congress or
from the General Accounting Office.
[<-Struck out]
(2) AVAILABILITY TO THE CONGRESS--
[<-Struck out]
(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.
[<-Struck out]
(B) PROHIBITION ON FURTHER DISCLOSURE- No
committee, subcommittee, or Member of Congress shall disclose any
information obtained under this Act or any predecessor Act
[<-Struck out][Struck out->] 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.
[<-Struck out]
(3) AVAILABILITY TO THE GAO-
[<-Struck
out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(d) PENALTIES FOR DISCLOSURE OF CONFIDENTIAL
INFORMATION-
[<-Struck out]
(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--
[<-Struck out]
(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
[<-Struck out]
(B) is exempt from disclosure under this
section.
[<-Struck out]
(2) CRIMINAL PENALTIES- Any such officer or
employee who knowingly violates paragraph (1) shall be fined not more than
$50,000, imprisoned not
[<-Struck out][Struck out->] 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.
[<-Struck out]
(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.
[<-Struck out]
TITLE VIII--MISCELLANEOUS PROVISIONS
[<-Struck out]
SEC. 801. ANNUAL AND PERIODIC REPORTS.
[<-Struck out]
(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.
[<-Struck
out]
(b) REPORT ELEMENTS- Each such report shall
include in detail--
[<-Struck out]
(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;
[<-Struck out]
(2) a description of the changes to and the
year-end status of country tiering and the Control List;
[<-Struck
out]
(3) a description of the petitions filed and the
determinations made with respect to foreign availability and mass-market
status, the set-asides of foreign availability and mass-market status
determinations, and negotiations to eliminate foreign availability;
[<-Struck out]
(4) a description of the regulations issued
under this Act;
[<-Struck out]
(5) a description of organizational and
procedural changes undertaken in furtherance of this Act;
[<-Struck out]
(6) a description of the enforcement activities,
violations, and sanctions imposed under section 604;
[<-Struck
out]
(7) a statistical summary of all applications
and notifications, including--
[<-Struck out]
(A) the number of applications and
notifications pending review at the beginning of the fiscal year;
[<-Struck out]
(B) the number of notifications returned and
subject to full license procedure;
[<-Struck out]
(C) the number of notifications with no action
required;
[<-Struck out]
(D) the number of applications that were
approved, denied, or withdrawn, and the number of applications where final
action was taken; and
[<-Struck out]
(E) the number of applications and
notifications pending review at the end of the fiscal year;
[<-Struck out]
(8) summary of export license data by export
identification code and dollar value by country;
[<-Struck
out]
(9) an identification of processing time by--
[<-Struck out]
(A) overall average, and
[<-Struck
out]
(B) top 25 export identification codes;
[<-Struck out]
(10) an assessment of the effectiveness of
multilateral regimes, and a description of negotiations regarding export
controls;
[<-Struck out]
(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
[<-Struck out][Struck out->] which the executive branch intends to address the
differences;
[<-Struck out]
(12) an assessment of the costs of export
controls;
[<-Struck out]
(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
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
SEC. 802. TECHNICAL AND CONFORMING AMENDMENTS.
[<-Struck out]
(a) REPEAL- The Export Administration Act of 1979
(50 U.S.C. App. 2401 et seq.) is repealed.
[<-Struck out]
(b) ENERGY POLICY AND CONSERVATION ACT-
[<-Struck out]
(1) Section 103 of the Energy Policy and
Conservation Act (42 U.S.C. 6212) is repealed.
[<-Struck
out]
(2) Section 251(d) of the Energy Policy and
Conservation Act (42 U.S.C. 6271(d)) is repealed.
[<-Struck
out]
(c) ALASKA NATURAL GAS TRANSPORTATION ACT- Section
12 of the Alaska Natural Gas Transportation Act of 1976 (15 U.S.C. 719j) is
repealed.
[<-Struck out]
(d) MINERAL LEASING ACT- Section 28(u) of the
Mineral Leasing Act (30 U.S.C. 185(u)) is repealed.
[<-Struck
out]
(e) EXPORTS OF ALASKAN NORTH SLOPE OIL- Section
28(s) of the Mineral Leasing Act (30 U.S.C. 185(s)) is repealed.
[<-Struck out]
(f) DISPOSITION OF CERTAIN NAVAL PETROLEUM RESERVE
PRODUCTS- Section 7430(e) of title 10, United States Code, is repealed.
[<-Struck out]
(g) OUTER CONTINENTAL SHELF LANDS ACT- Section 28
of the Outer Continental Shelf Lands Act (43 U.S.C. 1354) is repealed.
[<-Struck out]
(h) ARMS EXPORT CONTROL ACT-
[<-Struck
out]
(1) Section 38 of the Arms Export Control Act
(22 U.S.C. 2778) is amended--
[<-Struck out]
(A) in subsection (e)--
[<-Struck
out]
(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 2001, by subsections (a) and (b) of section
607 of such Act, and by section 702 of such Act,'; and
[<-Struck out]
(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 2001'; and
[<-Struck
out]
(B) in subsection (g)(1)(A)(ii), by inserting
`or section 603 of the Export Administration Act of 2001' after `1979'.
[<-Struck out]
(2) Section 39A(c) of the Arms Export Control
Act is amended--
[<-Struck out]
(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 2001'; and
[<-Struck out]
(B) by striking `11(c)' and inserting
`603(c)'.
[<-Struck out]
(3) Section 40(k) of the Arms Export Control Act
(22 U.S.C. 2780(k)) is amended--
[<-Struck out]
(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
2001'; and
[<-Struck out]
(B) by striking `11(c)' and inserting
`603(c)'.
[<-Struck out]
(i) OTHER PROVISIONS OF LAW-
[<-Struck
out]
(1) Section 5(b)(4) of the Trading with the
Enemy Act (50 U.S.C. App. 5(b)(4)) is amended by striking `section 5 of the
Export Administration Act of 1979, or under section 6 of that Act to the
extent that such controls promote the nonproliferation or antiterrorism
policies of the United States' and inserting `titles II and III of the
Export Administration Act of 2001'.
[<-Struck out]
(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--
[<-Struck out]
(A) by striking `Export Administration Act of
1979' the first place it appears and inserting `Export Administration Act
of 2001'; and
[<-Struck out]
(B) by striking `Act of 1979)' and inserting
`Act of 2001)'.
[<-Struck out]
(3) Section 140(a) of the Foreign Relations
Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. 2656f(a)) is
amended--
[<-Struck out]
(A) in paragraph (1)(B), by inserting `or
section 310 of the Export Administration Act of 2001' after `Act of 1979';
and
[<-Struck out]
(B) in paragraph (2), by inserting `or 310 of
the Export Administration Act of 2001' after `6(j) of the Export
Administration Act of 1979'.
[<-Struck out]
(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 2001'.
[<-Struck
out]
(5) Section 205(d)(4)(B) of the State Department
Basic Authorities Act of 1956 (22 U.S.C. 305(d)(4)(B)) is amended by
striking `section 6(j) of the Export Administration Act of 1979' and
inserting `section 310 of the Export Administration Act of 2001'.
[<-Struck out]
(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 2001'.
[<-Struck
out]
(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 2001'.
[<-Struck out]
(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 2001'.
[<-Struck
out]
(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 2001'.
[<-Struck out]
(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
2001'.
[<-Struck out]
(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
2001'.
[<-Struck out]
(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 2001'.
[<-Struck
out]
SEC. 803. SAVINGS PROVISIONS.
[<-Struck
out]
(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--
[<-Struck out]
(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
[<-Struck
out]
(2) those provisions of the Arms Export Control
Act which are amended by section 802,
[<-Struck out]
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.
[<-Struck out]
(b) ADMINISTRATIVE AND JUDICIAL PROCEEDINGS-
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(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.
[<-Struck out]
(d) LAWFUL INTELLIGENCE ACTIVITIES- The
prohibitions otherwise applicable under this Act do not apply with respect to
any transaction subject to the reporting requirements of title V of the
National Security Act of 1947.
[<-Struck out]
(e) IMPLEMENTATION- The Secretary shall make any
revisions to the Export Administration regulations required by this Act no
later than 180 days after the date of enactment of this Act.
[<-Struck out]
item which was the basis for the item being controlled.
The Secretary shall consult with each such committee on such termination or extension of that committee.
significant contribution to the military or proliferation potential of a controlled country or end user which would prove detrimental to the national security of the United States, or unless failure to control the item would be contrary to the provisions of section 201(c), section 201(d), or section 309 of this Act.
the United States to a country to which the item is to be reexported.
eliminate foreign availability within that 18-month period.
agency, and all contractors with any such department or agency, shall, consistent with the need to protect intelligence sources and methods, furnish information to the Office concerning foreign availability and the mass-market status of items subject to export controls under this Act.
effect on the date of the enactment of the Antiterrorism and Arms Export Amendments Act of 1989, shall be published in the Federal Register.
a description of the manner in which such country or organization intends to use the item;
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;
notify the Secretary of Defense and the head of any department or agency the Secretary considers appropriate. The Secretary shall, within 14 days after receiving the request, inform the person making the request of the proper classification.
the purpose and procedures of the multilateral export control regime.
to the United States and is not itself the object of any form of boycott pursuant to United States law or regulation:
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.
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).
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.
(1) on a person with respect to a product or service if the President certifies to the Congress that--
for production quantities to satisfy United States operational military requirements;
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.
and employees of the Department only with the concurrence of the Commissioner of Customs or a person designated by the Commissioner.
through the United States in violation of this Act.
each such closed undercover operation, the results obtained and any civil claims made with respect to the operation.
renewal of a temporary denial order may, within 15 days after the order is issued, be appealed by a person subject to the order to the United States Court of Appeals for the District of Columbia Circuit, which shall have jurisdiction of the appeal. The court may review only those issues necessary to determine whether the issuance of the temporary denial order was based on reasonable cause to believe that the person subject to the order was engaged in or was about to engage in any act or practice that constitutes or would constitute a violation of this title, or any regulation, order, or license issued under this Act, or whether a criminal indictment has been returned against the person subject to the order alleging a violation of this Act or of any of the statutes listed in section 503. The court shall vacate the Secretary's order if the court finds that the Secretary's order is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
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.
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.
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.
Calendar No. 26
To provide authority to control exports, and for other purposes.
END