[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1902 Introduced in Senate (IS)]
103d CONGRESS
2d Session
S. 1902
To improve the administration of export controls, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 8 (legislative day, February 22), 1994
Mr. Riegle (for himself and Mr. Sasser (by request)) introduced the
following bill; which was read twice and referred to the Committee on
Banking, Housing, and Urban Affairs
_______________________________________________________________________
A BILL
To improve the administration of export controls, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
TABLE OF CONTENTS
Page
Sec. 1. Title.................................................. 6
Sec. 2. Findings............................................... 6
Sec. 3. Policy statement....................................... 11
Sec. 4. General provisions..................................... 21
(a) Types of licenses.................................. 21
(b) Control list....................................... 21
(c) Militarily critical technologies list.............. 21
(d) Right of export.................................... 21
(e) Delegation of authority............................ 22
(f) Notification of the public; consultation with 22
business.
(g) Technical advisory committees...................... 22
(h) Fees............................................... 25
Sec. 5. Nonproliferation, national security, and foreign policy 25
control authorities.
(a) Authority.......................................... 25
(b) Criteria........................................... 28
(c) Consultation with industry......................... 32
(d) Consultation with other countries.................. 33
(e) Consultations with the Congress.................... 33
(f) Multilateral control regimes....................... 35
(1) Policy..................................... 35
(2) Standards for national systems............. 36
(3) Standards for multilateral regimes......... 37
(A) Full membership.................... 37
(B) Effective enforcement and 37
compliance.
(C) Public understanding............... 38
(D) Effective implementation procedures 38
(E) Enhanced cooperation among regime 38
members.
(F) Periodic high-level meetings....... 38
(G) Common list of controlled items.... 39
(4) Incentives for partnership................. 39
(g) Publication of elements of multilateral control 39
regimes.
(h) Seeking multilateral support for unilateral 40
controls.
(i) Regulation indicating nature of unilateral controls 41
(j) Implementation..................................... 41
(1) Nonproliferation........................... 41
(A) Countries participating in certain 41
agreements.
(B) Other countries.................... 42
(2) Missile technology......................... 42
(3) Chemical and biological weapons............ 43
(4) International terrorism.................... 44
(5) Human rights and crime control............. 47
(k) Unfair impact on United States exporter............ 48
(1) Policy..................................... 48
(2) Relief from export controls................ 48
(A) Foreign availability............... 49
(B) Ineffective controls............... 49
(C) Competitive disadvantage........... 49
(3) Provisions for relief...................... 50
(4) Exceptions from relief..................... 52
(5) Relief from traditional East-West COCOM 52
controls.
(6) Procedures................................. 53
(A) Notice of assessments.............. 53
(B) Procedures for making 53
determinations.
(C) Negotiations to eliminate foreign 56
availability.
(7) Sharing of information..................... 57
(8) Availability defined....................... 58
(9) Congressional notification and reporting 58
requirements.
(l) Unilateral controls prohibited..................... 59
(m) International obligations.......................... 60
(n) Information sharing................................ 61
(o) Denied parties, sanctioned parties, specially 61
designated nationals, and other parties presenting
unacceptable risks of diversion.
(1) Denied parties, sanctioned parties, 61
specially designated nationals.
(2) Other parties.............................. 61
(p) Freedom of Information Act exemption............... 61
Sec. 6. Short supply controls................................. 62
(a) Authority.......................................... 62
(b) Monitoring......................................... 63
(c) Domestically-produced crude oil.................... 64
(d) Agricultural commodities........................... 67
(e) Barter agreements.................................. 73
(f) Unprocessed red cedar.............................. 74
(g) Effect of controls on existing contracts........... 75
(h) Oil exports for use by United States military 76
facilities.
Sec. 7. Foreign boycotts...................................... 76
(a) Prohibitions and exceptions........................ 76
(b) Regulations........................................ 82
(c) Preemption......................................... 84
Sec. 8. Procedures for processing export license applications; 84
other inquiries.
(a) Primary responsibility of the Secretary............ 84
(b) Initial screening.................................. 86
(c) Action by other departments and agencies........... 87
(d) Interagency resolution............................. 89
(e) Actions by the Secretary........................... 90
(f) Multilateral controls.............................. 91
(g) Exceptions from required time periods.............. 92
(1) Agreement of the applicant................. 92
(2) Prelicense checks.......................... 92
(3) Requests for government-to-government 93
assurances.
(4) Multilateral review........................ 93
(5) Congressional notification................. 94
(h) Appeals............................................ 94
(i) Classification requests and other inquiries........ 95
Sec. 9. Violations............................................ 95
(a) Criminal penalties................................. 95
(b) Forfeiture of property interest and proceeds....... 97
(c) Civil penalties; administrative sanctions.......... 98
(d) Procedures relating to civil penalties and 98
sanctions.
(e) Payment of civil penalties......................... 99
(f) Refunds............................................ 100
(g) Collection......................................... 100
(h) Prior convictions.................................. 100
(i) Statute of limitations............................. 102
(j) Imposition of temporary denial orders.............. 102
(k) Violations defined by regulation................... 105
(l) Other authorities.................................. 105
Sec. 10. Enforcement.......................................... 106
(a) General authority and designation.................. 106
(b) Forfeiture......................................... 111
(c) Undercover investigative operations................ 112
(d) Reference to enforcement........................... 116
Sec. 11. Authority and procedures............................. 117
(a) Under Secretary of Commerce........................ 117
(b) Regulations........................................ 117
(c) Confidentiality of information..................... 118
(1) Exemptions from disclosure................. 118
(2) Information to Congress and GAO............ 119
(3) Commerce/customs information exchange...... 122
(4) Penalties for disclosure of confidential 122
information.
(d) Public participation............................... 123
(e) Control list development and review................ 123
(f) Authority for seminar and publications fund........ 126
(g) Support of other countries' Export Control Program. 127
(h) Applicability of Administrative Procedures Act..... 127
(1) Exemption.................................. 127
(2) Judicial review............................ 127
(i) Incorporated commodities, technology, and software. 129
(1) Commodities containing controlled parts and 129
components.
(2) Reexports of foreign-made items 130
incorporating United States items.
(j) Exceptions for medical and humanitarian purposes... 132
(k) Sanctity of existing contracts and licenses........ 132
(l) Fact-finding authority............................. 133
(m) Militarily critical technologies list development, 135
review and use.
Sec. 12A. Sanctions for proliferation activity and the use of 137
chemical and biological weapons and missiles.
(a) Determinations..................................... 137
(1) Determination of activity supporting the 137
proliferation of chemical and biological
weapons and missiles.
(2) Determination of use of chemical or 138
biological weapons.
(b) Persons against which sanctions are to be imposed.. 139
(c) Sanctions.......................................... 139
(1) Mandatory sanctions........................ 139
(2) Discretionary sanctions.................... 140
(3) Mandatory sanctions for use of chemical or 141
biological weapons.
(A) Foreign assistance................. 141
(B) Arms sales......................... 141
(C) Arms sales financing............... 142
(D) Denial of United States Government 142
credit or other financial
assistance.
(E) Exports of national security- 142
sensitive items.
(4) Additional sanctions if certain conditions 142
not met.
(5) Additional sanctions for use of chemical or 143
biological weapons.
(A) Multilateral Development Bank 144
assistance.
(B) Bank loans......................... 144
(C) Further export restrictions........ 144
(D) Import restrictions................ 144
(E) Diplomatic relations............... 145
(F) Presidential action regarding 145
aviation.
(d) Deferral and limitation............................ 147
(e) Exceptions......................................... 149
(f) Termination of sanctions for using chemical or 151
biological weapons.
(g) Waiver............................................. 152
(1) Criterion for waiver....................... 152
(2) Notification of and report to Congress..... 152
(h) Regulatory implementation of sanctions............. 152
Sec. 12B. Sanctions for proliferation activity and the use of 153
chemical and biological weapons.
``Sec. 72. Sanctions against certain foreign persons 153
and countries.
``(a) Determinations........................... 153
``(1) Determination of activity 153
supporting the proliferation of
chemical and biological weapons and
missiles.
``(2) Determination of use of chemical 155
or biological weapons.
``(b) Persons against which sanctions are to be 155
imposed.
``(c) Sanctions................................ 155
``(1) Mandatory sanctions.............. 156
``(2) Discretionary sanctions.......... 156
``(3) Mandatory sanctions for use of 157
chemical or biological weapons.
``(A) Foreign assistance........... 157
``(B) Arms sales................... 157
``(C) Arms sales financing......... 158
``(D) Denial of United States 158
Government credit or other
financial assistance.
``(E) Exports of national security- 158
sensitive items.
``(4) Additional sanctions if certain 158
conditions not met.
``(5) Additional sanctions for useof 159
chemical or biological weapons.
``(A) Multilateral Development Bank 160
assistance.
``(B) Bank loans................... 160
``(C) Further export restrictions.. 160
``(D) Import restrictions.......... 160
``(E) Diplomatic relations......... 161
``(F) Presidential action regarding 161
aviation.
``(d) Deferral and limitation.................. 163
``(e) Exceptions............................... 165
``(f) Termination of sanctions for using 167
chemical or biological weapons.
``(g) Waiver................................... 168
``(1) Criterion for waiver............. 168
``(2) Notification of and report to 168
Congress.
``(h) Regulatory implementation of sanctions... 168
Sec. 13. Annual Report......................................... 169
Sec. 14. Definitions........................................... 171
Sec. 15. Effects on Other Acts................................. 178
(a) Commodity jurisdiction............................. 178
(1) Coordination of controls................... 178
(2) Elimination of overlapping controls........ 179
(3) Commodity jurisdiction dispute resolution.. 179
(b) In general......................................... 180
(c) Amendments to the International Emergency Economic 180
Powers Act.
(d) Civil aircraft equipment........................... 184
(e) Nuclear nonproliferation controls.................. 184
(f) Conforming amendment to the Arms Export Control Act 185
(g) Effect on section 38(e) of the Arms Export Control 190
Act.
Sec. 16. Authorization of appropriations....................... 190
Sec. 17. Effective date........................................ 191
Sec. 18. Savings provision..................................... 191
(a) In general......................................... 191
(b) Repeal............................................. 191
(c) Administrative proceedings......................... 191
SECTION 1. TITLE.
This Act may be cited as the ``Export Administration Act of 1994''
and shall hereafter be referred to as the Act.
SEC. 2. FINDINGS.
The Congress makes the following findings:
(1) Export controls shall be a part of a comprehensive
response to national security threats. United States exports
should be restricted only for significant national security,
nonproliferation, and foreign policy reasons.
(2) The proliferation of weapons of mass destruction, their
delivery systems, and other significant military capabilities
has become one of the most serious threats to world peace and
to our national security.
(3) Since growing exports are essential to future economic
growth, restrictions on exports must be evaluated in terms of
their effects on the United States economy. Economic interests
must play a key role in decisions on export controls and the
rigor of economic analysis and data available in the decision-
making process must be enhanced.
(4) Exports of certain commodities, technology, and
software may adversely affect the national security and foreign
policy of the United States, by making a significant
contribution to the military potential of individual countries
or by disseminating the capability to design, develop, test,
produce, stockpile, or use weapons of mass destruction, missile
delivery systems, and other significant military capabilities.
The administration of export controls should emphasize the
control of exports that could make a significant contribution
to the military potential of any country which would be
detrimental to the national security and foreign policy of the
United States and the control of items that could disseminate
the capability to produce and use weapons of mass destruction,
missile delivery systems, and other significant military
capabilities.
(5) The acquisition of sensitive commodities, technology,
and software by those countries and end users whose actions or
policies run counter to United States national security or
foreign policy interests may enhance the military-industrial
capabilities of those countries, particularly their ability to
design, develop, test, produce, stockpile, use, and deliver
nuclear, chemical, and biological weapons, missile delivery
systems, and other significant military capabilities. This
enhancement threatens the security of the United States, its
allies, and other friendly nations, and places additional
demands on the defense budget of the United States.
Availability to certain countries and end users of items that
contribute to military capabilities or the proliferation of
weapons of mass destruction is a fundamental concern of the
United States and should be eliminated through negotiations and
other appropriate means whenever possible.
(6) The national security of the United States depends not
only on wise foreign policies and a strong defense, but also a
vibrant national economy. To be truly effective, export
controls should be applied uniformly by all suppliers.
(7) The United States export control system must not be
overly restrictive or bureaucratic, or undermine the
competitive position of American industry. The export control
system must be efficient, responsive, transparent, and
effective.
(8) Export controls should be focused on those items that
materially contribute to a country's or end user's military or
proliferation potential. The United States must pursue the
maximum effectiveness of multilateral export control regimes,
including comprehensive enforcement measures. The United States
recognizes the important of comprehensive enforcement measures
to maximize the effectiveness of multilateral controls.
Therefore, the United States must level the playing field for
United States trade and enhance the effectiveness of controls
by pursuing multilateral controls and harmonizing their
implementation.
(9) Except in the event the United States is the sole
source of critical supplies, unilateral export controls may not
be truly effective in influencing the behavior of other
governments and impeding access by target countries to
controlled items. Unilateral controls may therefore impede
access to United States sources of supply without affecting the
ability of target countries to obtain controlled items
elsewhere. Unilateral controls may therefore permit foreign
competitors to serve markets the United States Government
denies to American firms and workers and impair the reliability
of United States suppliers in comparison with their foreign
competitors.
(10) While the United States may at times have to act
unilaterally, we should strive to avoid unilateral action if it
damages United States commercial interests without effectively
promoting our nonproliferation and other national security and
foreign policy objectives. At the same time, the need to lead
the international community or overriding national security or
foreign policy interests may justify unilateral controls in
specific cases.
(11) The multilateral export control system, which helped
contain military threats posed by the former Soviet Bloc
countries, should be replaced by an effective and efficient
multilateral export control program furthering vital interests
of the United States in the post-Cold War era.
(12) International treaties, such as the Chemical Weapons
Convention, and international agreements and arrangements
intended to control, lessen or eliminate weapons of mass
destruction should be fully implemented by, inter alia,
imposing restrictions on imports and exports of designated
items, establishing, monitoring and transmitting reports on the
production, processing, consumption, export and import of
designated items, and complying with verification regimes
mandated by such treaties, agreements, and arrangements.
(13) Restrictions that negatively affect the United States
industrial base may ultimately weaken United States military
capabilities and lead to dependencies on foreign sources for
key components. The availability of certain items in the United
States and from abroad may affect the welfare of the domestic
economy.
(14) It is important that the administration of export
controls imposed for foreign policy purposes give special
emphasis to the need to control exports of items and substances
hazardous to the public health and the environment which are
banned or severely restricted for use in the United States, and
which, if exported, could affect the international reputation
of the United States as a responsible trading partner.
SEC. 3. POLICY STATEMENT.
It is the policy of the United States:
(1) To minimize uncertainties in export control policy and
to encourage trade with all countries with which the United
States has diplomatic or trading relations, except those
countries with which such trade has been determined by the
President to be against the national interest.
(2) That the United States should not restrict export trade
by its citizens except when necessary for significant national
security, non-proliferation, foreign policy, or short supply
objectives and such restrictions are administered consistent
with basic standards of fairness, and are implemented only
after full consideration of the impact on the economy of the
United States and only to the extent necessary--
(A) to stem the proliferation of weapons of mass
destruction and the means to deliver them by--
(i) leading international efforts to
control the proliferation of chemical and
biological weapons, nuclear explosive devices,
missile delivery systems, and other significant
military capabilities;
(ii) controlling involvement and
contributions by United States persons to
foreign programs intended to design, develop,
test, produce, stockpile, or use chemical and
biological weapons, nuclear explosive devices,
missile delivery systems, and other significant
military capabilities and the means to design,
develop, test, produce, stockpile, or use them;
and
(iii) implementing international agreements
and arrangements that provide for controls on
imports and exports of designated items,
reports on the production, processing,
consumption, exports and imports of such items,
and compliance with verification programs;
(B) to restrict the export of items that would make
a significant contribution to the military potential of
countries that would prove detrimental to the national
security and foreign policy of the United States;
(C) to restrict the export of items where necessary
to significantly further the foreign policy of the
United States or to fulfill its declared international
commitments; and
(D) to restrict the export of items where necessary
to protect the domestic economy from the excessive
drain of scarce materials or to secure the removal by
foreign countries of restrictions on access to supplies
where such restrictions have or may have a serious
inflationary impact, have caused or may cause a serious
domestic shortage, or have been imposed for purposes of
influencing the foreign policy of the United States.
(3) To further increase the reliance of the United States
upon multilateral coordination of controls through effective
control regimes that maintain lists of controlled items that
are truly critical to the control objectives, strive to
increase membership to include all relevant countries, maintain
common criteria and procedures for licensing, and harmonize
member countries' licensing practices. It is the policy of the
United States that multilateral controls are the best means of
achieving the objectives of the United States.
(4) To encourage all countries that produce items that are
controlled by multilateral regimes to adhere to the guidelines
and controls of the regimes and to join the regime if they meet
the relevant criteria for membership.
(5) To make every effort to achieve effective multilateral
export controls in all cases where the United States imposes
export controls.
(6) To avoid unilateral export controls and policies except
when dictated by overriding national interests, to continue to
work with other supplier nations to make export controls
multilateral and to harmonize their implementation, and to
avoid unilateral action if it damages United States commercial
interests without effectively promoting our nonproliferation
and other national security and foreign policy objectives. The
United States will therefore impose unilateral export controls
only when the following conditions are met:
(A) Diplomatic efforts have failed or clearly would
be unsuccessful in establishing a multilateral regime.
(B) The national security, nonproliferation, or
foreign policy objectives expected to be achieved by
the unilateral control justify any expected loss of
sales, jobs, and reliability on the part of United
States exporters.
(7) To eliminate unilateral dual-use export controls and
policies unless their continuation in force is essential to
United States national security, nonproliferation, or foreign
policy interests.
(8) To eliminate unnecessary and ineffective export
controls.
(9) To make all licensing decisions in a timely manner so
undue delays in the licensing process will not cause a United
States firm to lose an export sale.
(10) To ensure that control lists are periodically updated
to reflect the changing proliferation threat, advances in
technology, and a realistic appraisal of what is beyond the
reach of effective control.
(11) To maintain a presumption of approval of applications
for authority to export dual-use goods to civil end uses and
end users under this Act, absent sound reasons for denial based
on national security, nonproliferation and foreign policy
grounds, based upon the commitment of the United States to an
open international trading system and the need to ensure
American competitiveness.
(12) To use export controls to encourage other countries to
take immediate steps to prevent the use of their territories or
resources to aid, encourage or give sanctuary to those persons
directing, supporting or participating in acts of international
terrorism. To achieve this objective, the President shall make
reasonable and prompt efforts to secure the removal or
reduction of such assistance to international terrorists
through international cooperation and agreement before imposing
export controls.
(13) To sustain vigorous scientific enterprise. To do so
involves sustaining the ability of scientists and other
scholars freely to communicate research findings, in accordance
with the applicable provisions of law, by means of publication,
teaching, conferences, and other forms of scholarly exchange.
(14)(A) To oppose restrictive trade practices or boycotts
fostered or imposed by foreign countries against other
countries friendly to the United States or against any United
States person; and
(B) To encourage and, in specified cases, require United
States persons engaged in the export of commodities, software,
technology and other information to refuse to take actions,
including furnishing information or entering into or
implementing agreements, which have the effect of furthering or
supporting the restrictive trade practices or boycotts fostered
or imposed by any foreign country against a country friendly to
the United States or against any United States person.
(15) To ensure that United States economic interests play a
key role in decisions on export controls and to take immediate
action to increase the rigor of economic analysis and data
available in the decisionmaking process.
(16) To streamline export licensing functions and thereby
better serve the exporting public by reducing and eliminating
overlapping, conflicting, and inconsistent regulatory burdens;
and further, to create a more efficient, responsive,
transparent, and effective export control process.
(17) To cooperate with other countries with which the
United States has defense treaty commitments or common
strategic objectives in restricting the export of goods and
technology which would make a significant contribution to the
military potential of any country or combination of countries
which would prove detrimental to the national security of the
United States and of those countries with which the United
States has defense treaty commitments or common strategic
objectives, and to encourage other friendly countries to
cooperate in restricting the sale of goods and technology that
can harm our mutual security.
(18) To promote the national security of the United States
which requires that the Nation's economy shall flourish, its
geographic integrity is maintained, its political and foreign
policy views are respected, the freedom and well-being of its
citizens are assured, and that American values are preserved.
The United States as a world power must protect its national
security against direct and indirect threats through the
promotion of nonproliferation policies in all areas of the
world.
(19) To implement export controls and diplomatic activity
needed to sustain multilateral and bilateral activities and
thereby complement and reinforce each other.
(20) To enhance the national security and nonproliferation
interests of the United States. To this end and consistent with
the other policies of this section and the criteria of section
5(b) of this Act, the United States will use multilateral and
unilateral controls when necessary to ensure that access to
weapons of mass destruction, missile delivery systems, and
other significant military capabilities is restricted. While
the multilateral nonproliferation regimes will be the primary
instruments through which the United States will pursue its
nonproliferation goals, it will also engage in bilateral
agreements and, when consistent with the policies of this
section and the criteria of section 5(b), take unilateral
action.
(21) To defer and punish acts of international terrorism
and to encourage other countries to take immediate steps to do
so, or to terminate their support for, encouragement of, or use
of their territories to aid or give sanctuary to, persons and
groups involved in international terrorism. To this end and
consistent with the policies of this section and the criteria
of section 5(b) of this Act, the United States should distance
itself from countries that have violated international norms of
behavior by repeatedly supporting acts of international
terrorism by restricting exports to those countries. The United
States may establish such controls on exports as may be
appropriate to induce such countries to change their
unacceptable policies.
(22) To promote international peace, stability, and respect
of fundamental human rights. The United States may establish
controls on exports to countries that threaten regional
stability, abuse of fundamental rights of their citizens, or to
promote other important foreign policy objectives of the United
States consistent with the policies of this section and the
criteria of section 5(b) of this Act.
(23) In developing changes to multilateral control lists,
to seek to focus controls on only that set of items that, if
taken together and if denied to target countries, would carry
out the policy of the United States to deny such countries the
ability to design, develop, test, produce, stockpile, or use
relevant conventional military capability, weapons of mass
destruction, their delivery systems, or other capabilities the
denial of which are the goals of United States export control
policy.
SEC. 4. GENERAL PROVISIONS.
(a) Types of Licenses.--The Secretary may require any type of
validated or general license under such terms and conditions as may be
imposed by the Secretary for the effective and efficient implementation
of this Act.
(b) Control List.--In accordance with the procedures specified in
sections 5 and 11 of this Act, the Secretary shall establish and
maintain a list (hereinafter in this Act referred to as the ``Commerce
Control List'' or ``Control List'') stating license requirements for
exports of items under this Act.
(c) Militarily Critical Technologies List.--The Secretary of
Defense shall bear primary responsibility for establishing and
maintaining the Militarily Critical Technologies List (hereinafter in
the Act referred to as the ``MCTL'') identifying equipment and
technologies critical to the design, development, test, production,
stockpiling, or use of weapons of mass destruction and other
significant military capabilities, including nuclear, biological and
chemical weapons, and manned and unmanned vehicles capable of
delivering such weapons.
(d) Right of Export.--No authority or permission to export may be
required under this Act, or under regulations issued under this Act,
except to carry out the policies set forth in section 3 of this Act.
(e) Delegation of Authority.--The President may delegate the power,
authority, and discretion conferred upon him by this Act to such
departments, agencies, or officials of the Government as he may
consider appropriate, except that no authority under this Act may be
delegated to, or exercised by, any official of any department or agency
the head of which is not appointed by the President, by and with the
advice and consent of the Senate.
(f) Notification of the Public; Consultation With Business.--The
Secretary shall keep the public fully apprised of changes in export
control policy and procedures instituted in conformity with this Act
with a view to encouraging trade. The Secretary shall meet regularly
with representatives of a broad spectrum of enterprises, labor
organizations, and citizens interested in or affected by export
controls, in order to obtain their views on United States export
control policy and the foreign availability of items subject to
controls.
(g) Technical Advisory Committees.--
(1) Upon his or her own initiative or upon written request
by representatives of a substantial segment of any industry
which produces any items subject to export controls under this
Act or being considered for such controls, the Secretary shall
appoint technical advisory committees. Such technical advisory
committees shall advise the United States on all aspects of
controls imposed or proposed under this Act. Each such
committee shall consist of representatives of United States
industry and Government, including the Department of Commerce
and such other departments and urgencies as appropriate. The
Secretary shall permit the widest possible participation by the
business community on the technical advisory committees.
(2) Technical advisory committees established under
paragraph (1) shall advise and assist the Secretary and any
other department, agency, or official of the Government of the
United States to which the President delegates authority under
this Act, on actions designed to carry out the policies of this
Act. Such committees, where they have expertise in such
matters, shall be consulted on questions involving (A)
technical matters, (B) worldwide availability and actual
utilization of production technology, (C) licensing procedures
which affect the level of export controls applicable to any
items, (D) revisions of the Control List (as provided in
subsection (b), including proposed revisions of multilateral
controls in which the United States participates), (E) the
issuance of regulations, (F) the impact and interpretation of
existing regulations, (G) processes and procedures for review
of licenses and policy, and (H) any other questions relating to
actions designed to carry out this Act. Nothing in this
subsection shall prevent the United States Government from
consulting, at any time, with any person representing industry
or the general public, regardless of whether such person is a
member of a technical advisory committee. Members of the public
shall be given a reasonable opportunity, pursuant to
regulations prescribed by the Secretary, to present evidence to
such committees.
(3) Upon request of any member of any such committee, the
Secretary may, if the Secretary determines it appropriate,
reimburse such member for travel, subsistence, and other
necessary expenses incurred by such member in connection with
the duties of such member.
(4) Each such committee shall elect a chairman, and shall
meet at least every 3 months at the call of the chairman,
unless the chairman determines, in consultation with the other
members of the committee, that such a meeting is not necessary
to achieve the purposes of this subsection. Each such committee
shall be terminated after a period of 2 years, unless extended
by the Secretary for additional periods of 2 years. The
Secretary shall consult each such committee on such termination
or extension of that committee.
(5) To facilitate the work of the technical advisory
committees, the Secretary, in conjunction with other
departments and agencies participating in the administration of
this Act, shall disclose to each such committee adequate
information, consistent with national security, pertaining to
the reasons for the export controls which are in effect or
contemplated for the items or policies for which that committee
furnishes advice. Information provided by the technical
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.
(h) Fees.--No fee may be charged in connection with the submission
or processing of an export license application.
SEC. 5. NONPROLIFERATION, NATIONAL SECURITY, AND FOREIGN POLICY CONTROL
AUTHORITIES.
(a) Authority.--
(1) In order to carry out the policies enumerated in
section 3 of this Act, the President may, in accordance with
the provisions of this section and section 15(e), prohibit or
curtail 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 regulate
domestic and foreign conduct, consistent with the policies of
this Act. Such authority shall include, but not be limited to,
the authority to prohibit activity such as financing,
contracting, servicing or employment, to deny access to items
in the United States and abroad, to conduct audits of records
and inspections of facilities, to compel reports, and to
implement international commitments of the United States with
respect to the control of exports.
(2) Except as otherwise specified in this Act, the
authority contained in this Act shall be exercised by the
Secretary, in consultation with appropriate departments and
agencies.
(3) As directed by the President, annual policy guidance
shall be issued to provide detailed implementing guidance to
licensing officials in all appropriate departments and
agencies.
(4) To develop the annual policy guidance, export controls
and other regulations to implement policies contained in
section 3 shall be reviewed annually. This annual policy review
shall include an evaluation of benefits and costs, including
economic impact, of export controls. The review should
include--
(A) an assessment by the Secretary of Commerce at
least 30 days in advance of determinations to extend
controls describing the economic consequences of the
controls during the preceding 12 months, including
estimates of any lost United States exports and jobs;
(B) an assessment by the Secretary of State at
least 30 days in advance of determinations to extend
controls describing the objectives of the controls and
the extent to which the controls have attained those
objectives over the preceding 12 months;
(C) an assessment by the Secretary of Defense at
least 30 days in advance of determinations to extend
controls describing the impact export controls have had
in the preceding 12 months on the national security of
the United States;
(D) solicitation of public comments for submission
of such comments at least 60 days in advance of
determinations to extend controls; and
(E) a systematic review by the Secretary of the
above in consultation with appropriate departments and
agencies.
(5) Based upon the review required by paragraph (4) above,
the Secretary, in consultation with appropriate departments and
agencies, shall determine at least annually whether the
national interest requires that he or she terminate unilateral
controls and regulations or maintain them for an additional 12
months. Unilateral controls imposed under (b)(1)(B) of this
section shall expire by operation of law after one year from
the most recent imposition or renewal of such controls unless
extended by the Secretary based upon his or her findings
consistent with the criteria and other requirements of this
Act. Such findings shall be provided to the Congress pursuant
to subsection (e)(2) of this section.
(b) Criteria.--
(1) Controls may be imposed, expanded or extended under
this section only if the President determines that--
(A) the control is essential to advancing the
nonproliferation, national security, or foreign
policies of the United States provided in section 3
above; and like-minded states have agreed with the
United States on the utility of such controls in
obtaining a shared objective and procedures for
implementing that objective; or
(B) the control is essential to advancing the
nonproliferation, national security, or foreign
policies of the United States provided in section 3
above; and the objective of the control is in the
overall national interest of the United States and
cannot be attained by means other than the control.
(2) The President should make the determination described
in subparagraph (1)(B) above for the purpose of imposing or
expanding a unilateral control, only if--
(A) such controls are likely to make substantial
progress toward achieving the intended purpose of--
(i) changing, modifying or constraining the
undesirable conduct or policies of the target
country or countries;
(ii) denying access by the target country
to controlled items for all sources;
(iii) establishing multilateral cooperation
to deny the target country access to controlled
items from all sources; or
(iv) denying exports or assistance that
significantly and directly contribute to the
proliferation of weapons of mass destruction,
terrorism, human rights abuses, or regional
instability;
(B) the proposed controls are compatible with the
foreign policy objectives of the United States and with
overall United States policy toward the target country;
(C) the reaction of other countries to the
imposition or expansion of such export controls by the
United States is not likely to render the controls
ineffective in achieving the intended purpose or to be
counter-productive to United States policy interests;
(D) the effect of the proposed controls on the
export performance of the United States, the
competitive position of the United States as a supplier
of items, or on the economic well-being of individual
United States companies and their employees and
communities does not exceed the benefit to the United
States foreign policy, nonproliferation, or national
security interests; and
(E) the United States has the ability to enforce
the proposed controls effectively.
(3) The President should make the determination described
in subparagraph (1)(B) above for the purpose of extending a
control, only if--
(A) such controls are likely to continue to make
substantial progress toward achieving the intended
purpose of--
(i) changing, modifying or constraining the
undesirable conduct or policies of the target
country or countries;
(ii) denying access by the target country
to controlled items from all sources;
(iii) establishing multilateral cooperation
to deny the target country access to controlled
items from all sources; or
(iv) denying exports or assistance that
significantly and directly contribute to the
proliferation of weapons of mass destruction,
terrorism, human rights abuses, or regional
instability;
(B) the impact of the controls has been compatible
with the foreign policy objectives of the United States
and with overall United States policy toward the target
country;
(C) the reaction of other countries to the
imposition or expansion of such export controls by the
United States has not rendered the controls ineffective
in achieving the intended purpose and have not been
counter-productive to United States policy interests;
(D) the effect of the proposed controls on the
export performance of the United States, the
competitive position of the United States as a supplier
of items, and the economic well-being of individual
United States companies and their employees and
communities has not exceeded the benefit to the United
States foreign policy, nonproliferation, or national
security interests; and
(E) the United States has enforced the controls
effectively.
(c) Consultation With Industry.--The Secretary, in every possible
instance, shall consult with and seek advice from affected United
States public, industries, and technical advisory committees and seek
public comment before the imposition, expansion, or extensions of any
export control under this section. Such consultation shall include
advice on the criteria set forth in subsection (b) and such other
matters as the Secretary considers appropriate.
(d) Consultation With Other Countries.--When imposing, expanding,
or extending export controls under this section, the Secretary of State
shall, in consultation with appropriate departments and agencies and at
the earliest appropriate opportunity, consult with the countries with
which the United States maintains export controls cooperatively and
with such other countries as appropriate to advise them of the reasons
for the action and to urge them to adopt similar controls.
(e) Consultations With the Congress.--
(1) The Secretary, in consultation with appropriate
departments and agencies, shall keep the Congress fully
apprised of changes in export control policy and procedures
pursuant to this Act. The Secretary or his designates, in
consultation with representatives of other appropriate
departments and agencies, shall consult with the Committee on
Foreign Affairs of the House of Representatives and the
Committee on Banking, Housing, and Urban Affairs of the Senate
on changes in export control policy, procedures, and other
developments related to this Act.
(2) The Secretary may not impose, expand, or extend
unilateral export controls under this section until the
Secretary has submitted to the Congress a report--
(A) specifying the purpose of the controls;
(B) specifying the determinations of the Secretary
described in subsection (b), the bases for such
determinations (or considerations), and any possible
adverse foreign policy consequences of the controls;
(C) describing the nature, the subjects, and the
results of, or the plans for, the consultation with
industry and the interested public pursuant to
subsection (c) and with other countries pursuant to
subsection (d);
(D) specifying the nature and results of any
alternative means attempted to achieve the objective of
the control, or the reasons for imposing, expanding, or
extending the controls without attempting any such
alternative means; and
(E) describing the availability from other
countries of items comparable to the items subject to
the proposed export controls, and describing the nature
and results of the efforts made to secure the
cooperation of foreign governments in controlling the
foreign availability of such comparable goods or
technology.
Such report shall also indicate how such controls will further
significantly the policies of the United States as set forth in
section 3 or will further its declared international
obligations.
(3) To the extent necessary to further the effectiveness of
the export controls, portions of a report required by paragraph
(2) may be submitted to the Congress on a classified basis, and
shall be subject to the provisions of section 11(c) of this
Act. Each such report shall, at the same time it is submitted
to the Congress, also be submitted to the General Accounting
Office for the purpose of assessing the report's full
compliance with the intent of this subsection.
(f) Multilateral Control Regimes.--
(1) Policy.--In order to carry out the policies of section
3 and the criteria of section 5(b), the Secretary of State, in
consultation with appropriate departments and agencies, should
seek multilateral arrangements that are intended to secure
effective achievement of these policies and criteria and in so
doing also establish fairer and more predictable competitive
opportunities for United States exporters.
(2) Standards for national systems.--In the establishment
and maintenance of multilateral regimes, the Secretary of
State, in consultation with appropriate departments and
agencies, shall take steps to attain the cooperation of members
in the effective implementation of export control systems. Such
systems should contain the following elements:
(A) National laws providing sufficient enforcement
authorities, civil and criminal penalties, and statutes
of limitations sufficient to deter potential violations
and punish violators.
(B) A program to evaluate export license
applications that includes sufficient technical
expertise to assess the licensing status of exports and
ensure the reliability of end users.
(C) An enforcement mechanism that provides
authority for trained enforcement officers to
investigate and prevent illegal exports.
(D) A system of export control documentation to
verify the movement of items.
(E) Procedures for the coordination and exchange of
information concerning licensing, end users, and
enforcement.
(F) Adequate national resources devoted to
subparagraphs (A) through (E) of this subsection.
(3) Standards for multilateral regimes.--In the
establishment and maintenance of multilateral regimes, the
Secretary of State, in consultation with appropriate
departments and agencies, shall seek, consistent with the
policies of section 3 and the criteria of section 5(b), the
following features for the multilateral control regimes in
which the United States participates:
(A) Full membership.--Achieve membership of all
supplier countries whose policies and activities are
consistent with the objectives and membership criteria
of the multilateral arrangement.
(B) Effective enforcement and compliance.--Promote
enforcement and compliance with the rules and
guidelines of the members of the regime through
maintenance of an effective control list.
(C) Public understanding.--Enhance public
understanding of each regime's purpose and procedures.
(D) Effective implementation procedures.--Achieve
procedures for effective implementation of the regime
rules and guidelines through uniform and consistent
interpretations of export controls agreed to by the
governments participating in the regime.
(E) Enhanced cooperation among regime members.--
Reach agreement to enhance cooperation among members of
the regime in obtaining the agreement of governments
outside the regime to restrict the export of items
controlled by the regime, to establish an ongoing
mechanism in the regime to coordinate planning and
implementation of export control measures related to
such agreements, and to remove items from the list if
the control of such items no longer serves the
objectives of the members of the regime.
(F) Periodic high-level meetings.--Conduct periodic
meetings of high-level representatives of participating
governments for the purpose of coordinating export
control policies and issuing policy guidance to the
regime members.
(G) Common list of controlled items.--Reach
agreement on a common list of items controlled by the
regime.
(4) Incentives for partnership.--Consistent with the
policies of this Act and consistent with the objectives, rules
and guidelines of the individual regime--
(A) the Secretary, in consultation with appropriate
departments and agencies, may provide for exports free
of validated license requirements to and among members
of a multilateral regime for items subject to controls
under such a multilateral regime; and
(B) the Secretary, in consultation with appropriate
departments and agencies, may adjust licensing policies
for access to items controlled pursuant to this Act
depending on a country or other entity's degree of
adherence to the export control policies of section 5.
(g) Publication of Elements of Multilateral Control Regimes.--
Consistent with arrangements in multilateral regimes, the United States
shall publish the following information:
(1) Purpose(s) of the control regime.
(2) Member countries.
(3) Licensing policy.
(4) Items subject to controls together with all public
notes, understandings, and other aspects of such agreement and
all changes thereto.
(5) Target countries or regions (if any), target end uses,
and target end users (including projects of concern).
(6) Rules of interpretation.
(7) Major policy actions.
(8) The rules and procedures of the regime for establishing
and modifying the above elements of the regime and for
reviewing export license applications as provided for by the
regime.
Subject to commitments required by multilateral regimes, within 6
months after the date of the enactment of this Act or thereafter within
2 months of joining or organizing a new multilateral regime, the
Secretary, in consultation with appropriate departments and agencies,
shall publish the above information. In addition, the Secretary shall
publish changes in the above information within 2 months of adoption of
such changes by a regime.
(h) Seeking Multilateral Support for Unilateral Controls.--For all
unilateral controls, the Secretary of State, in consultation with
appropriate departments and agencies, shall have a continuing duty to
seek support for such controls by other countries and by effective
multilateral control regimes.
(i) Regulation Indicating Nature of Unilateral Controls.--
Regardless of the reason for control, all unilateral controls shall be
indicated as such by regulation.
(j) Implementation.--
(1) Nonproliferation.--
(A) Countries participating in certain
agreements.--The Secretary of State, in consultation
with appropriate departments and agencies, shall be
responsible for conducting negotiations with those
countries participating in the groups known as the
Coordinating Committee, the Missile Technology Control
Regime (``MTCR''), the Australia Group, the Nuclear
Suppliers' Group, and other regimes that may be
established, regarding their cooperation in restricting
the export of items in order to carry out the policies
set forth in section 3.
Such negotiations shall cover, among other issues, which items
should be subject to multilaterally agreed export restrictions,
and the implementation of the restrictions consistent with the
principles in this Act.
(B) Other countries.--The Secretary of State, in
consultation with appropriate departments and agencies,
shall be responsible for conducting negotiations with
countries and groups of countries not referred to in
subparagraph (A) regarding their cooperation in
restricting the export of items consistent with
purposes set forth in this Act.
(2) Missile technology.--The Secretary, consistent with
section 3, section 5(b), section 5(f), and in consultation with
appropriate departments and agencies--
(A) shall, consistent with section 11(e), establish
and maintain, as part of the Control List, dual-use
items on the MTCR Annex;
(B) may include, as part of the Control List, items
that would provide a material contribution to the
design, development, test, production, stockpiling, or
use of missile delivery systems, which items are not
included in the MTCR Annex but which the United States
proposes to the other MTCR adherents for inclusion in
the MTCR Annex; and
(C) shall require an individual validated license,
consistent with MTCR arrangements, for--
(i) any export of items on the list
referred to under paragraph (2) to any country,
except as provided for in subsection (f)(4) of
this section; and
(ii) any export of items that the exporter
knows is destined for a project or facility for
the design, development, or manufacture of a
missile in a country that is not an MTCR
adherent.
(3) Chemical and biological weapons.--The Secretary,
consistent with section 3, section 5(b), section 5(f), and in
consultation with appropriate departments and agencies--
(A) shall, consistent with section 11(e), establish
and maintain, as part of the Control List, dual-use
items listed by the Australia Group or by the Chemical
Weapons Convention;
(B) may include, as part of the Control List, items
that would provide a material contribution to the
design, development, test, production, stockpiling, or
use of chemical or biological weapons, which items are
not listed by the Australia Group but which the United
States proposes to the other Australia Group adherents
for inclusion in its list of controlled items; and
(C) shall require an individual validated license,
consistent with the arrangements in the Australia Group
and the Chemical Weapons Convention, for--
(i) any export of items on the list
referred to under paragraph (3) to any country,
except as provided for in subsection (f)(4) of
this section; and
(ii) any export of items that the exporter
knows is destined for a project or facility for
the design, development, or manufacture of a
chemical or biological weapon.
(4) International terrorism.--
(A) A validated license shall be required for the
export of items to a country if the Secretary of State
has made the following determinations:
(i) The government of such country has
repeatedly provided support for acts of
international terrorism.
(ii) The export of such items could make a
significant contribution to the military
potential of such country, including its
military logistics capability, or could enhance
the ability of such country to support acts of
international terrorism.
(B) The Secretary and the Secretary of State shall
notify the Committee on Foreign Affairs of the House of
Representatives and the Committee on Banking, Housing,
and Urban Affairs and the Committee on Foreign
Relations of the Senate at least 30 days before issuing
any validated license required by paragraph (A).
(C) Each determination of the Secretary of State
under paragraph (A)(i), including each determination in
effect on the date of the enactment of the
Antiterrorism and Arms Export Amendments Act of 1989
(December 12, 1989), shall be published in the Federal
Register.
(D) A determination made by the Secretary of State
under paragraph (A)(i) 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--
(i) before the proposed rescission would
take effect, a report certifying that--
(I) there has been a fundamental
change in the leadership and policies
of the government of the country
concerned;
(II) that government is not
supporting acts of international
terrorism; and
(III) that government has provided
assurances that it will not support
acts of international terrorism in the
future; or
(ii) at least 45 days before the proposed
rescission would take effect, a report
justifying the rescission and certifying that--
(I) the government concerned has
not provided any support for
international terrorism during the
preceding 6-month period; and
(II) the government concerned has
provided assurances that it will not
support acts of international terrorism
in the future.
(5) Human rights and crime control.--
(A) Crime control and detection instruments and
equipment shall be approved for export by the Secretary
only pursuant to a validated export license.
Notwithstanding any other provision of the Act--
(i) any determination of the Secretary of
what items shall be included on the Control
List established pursuant to section 11(e) as a
result of the export restriction imposed under
this subsection shall be made with the
concurrence of the Secretary of State; and
(ii) any determination of the Secretary to
approve or deny an export license application
to export crime control and detection
instruments or equipment shall be made with the
concurrence of the Secretary of State, except
that, if the Secretary does not agree with the
Secretary of State with respect to any
determination under subparagraph (i) or (ii),
the matter shall be referred to the President
for resolution.
(B) The provisions of this subsection shall not
apply to exports to Canada, countries which are members
of the European Union, Norway, Iceland, Japan,
Australia, or New Zealand, or to such countries as the
President shall designate consistent with the purposes
of this subsection and section 502B of the Foreign
Assistance Act of 1961 (22 U.S.C. 2304).
(k) Unfair Impact on United States Exporter.--
(1) Policy.--It is the policy of the United States that no
United States exporter should be placed at a competitive
disadvantage vis-a-vis its commercial competitors because of
export control policies or practices unless relief from such
controls would create a significant risk to the foreign policy,
nonproliferation, or national security interests of the United
States.
(2) Relief from export controls.--A person may petition the
Secretary for relief from current export control requirements
on any one or more of the following grounds and the Secretary
may conduct evaluations for relief on his or her own initiative
based upon any one or more of the following grounds:
(A) Foreign availability.--The controlled item is
available in fact in sufficient quantity and comparable
quality to the proposed countries of export or end
users from sources outside the United States so that
the requirement for a validated license is or would be
ineffective in achieving the purpose of the control.
(B) Ineffective controls.--The controlled items are
so widely available in the United States that the
Government cannot enforce the controls effectively,
unless the Secretary has reliable evidence that the
controls have been effective in denying such target
destination access to the controlled items originating
in the United States.
(C) Competitive disadvantage.--
(i) Differences between the export control
policies or procedures of the United States and
that of governments of foreign suppliers
effectively has placed or will place the United
States exporter at a near-term commercial
disadvantage vis-a-vis its competitors abroad.
(ii) Changes to the domestic control lists
of the United States and foreign governments
result in similar items being controlled
differently thus resulting in a competitive
disadvantage.
(3) Provisions for relief.--Consistent with multilateral
arrangements, the Secretary, in consultation with appropriate
departments and agencies, shall make determinations of facts
under paragraph (2) and, subject to paragraph 4, provide the
following relief to firms that meet the criteria in paragraph
(2):
(A) Change the control status of all or some of the
items in question so as to eliminate any significant
competitive disadvantage.
(B) Selectively approve the sale of controlled
goods so as to eliminate any significant competitive
disadvantage.
(C) Seek multilateral support to eliminate the
source of foreign availability or to enhance a control
to make it effective. If this relief is chosen and if
such efforts fail to achieve multilateral support to
eliminate the source of foreign availability or to make
the control effective, then not later than 330 days
from the date of the Secretary's initiation of an
assessment, the Secretary shall provide other relief
pursuant to (A) or (B) above or conclude pursuant to
paragraph (4) that the granting of such relief would
create a significant risk to United States
nonproliferation, foreign policy or national security
interests: Provided, however, If the Secretary of
State, in consultation with appropriate departments and
agencies, finds that substantial progress is being made
to achieve multilateral support to eliminate the source
of foreign availability or to make the control
effective, then the Secretary shall provide other
relief pursuant to (A) or (B) above or conclude
pursuant to paragraph (4) that the granting of such
relief would create a significant risk to United States
nonproliferation, foreign policy or national security
interests, and shall do so within an additional 180
days.
Except as provided in paragraph (5), a determination that a
petitioner qualifies for relief under paragraph (2) above shall
not compel the United States to decontrol an item that remains
subject to control by a multilateral regime in which the United
States is a member or adherent.
(4) Exceptions from relief.--The Secretary shall provide
relief to a petitioner who qualifies for relief under paragraph
(2) unless the Secretary concludes that the granting of such
relief would create a significant risk to United States
nonproliferation, foreign policy, or national security
interests. In the event the Secretary determines to grant such
relief, he or she may do so unless the President determines
that such relief would create a significant risk to the foreign
policy, nonproliferation, or national security interests of the
United States.
(5) Relief from traditional east-west cocom controls.--
Relief under paragraph (2) shall compel either the elimination
of the foreign availability or decontrol as provided in this
paragraph for an item controlled by the United States based
solely on its undertakings in the Coordinating Committee prior
to October of 1993 so long as the Coordinating Committee shall
continue in existence. For such an item, the Secretary may not,
after the determination is made under paragraph (2), require a
validated license for the export of such items during the
period that such determination remains in effect, unless the
President determines that the absence of export controls under
this section on the items would prove detrimental to the
national security of the United States.
(6) Procedures.--In any case in which the President or the
Secretary determines that export controls under this section
must be maintained notwithstanding the existence of facts that
constitute a basis for granting relief, the Secretary shall
publish that determination, together with a concise statement
of its basis and the estimated economic impact of the decision.
(A) Notice of assessments.--Whenever the Secretary
undertakes an assessment under paragraph (2), the
Secretary shall publish notice of initiation of such
assessment in the Federal Register.
(B) Procedures for making determinations.--During
the conduct of an assessment under this subsection, the
Secretary shall consult with other appropriate
departments and agencies concerning the conduct of the
assessment. The Secretary shall make a determination as
to whether relief is required under paragraph (2)
within 120 days of the date of the Secretary's
initiation of an assessment and shall so notify the
applicant. If the Secretary has determined that relief
is appropriate, the Secretary shall, upon making such a
determination, submit the determination for review to
appropriate departments and agencies for consultations
regarding the findings and selected relief. The
Secretary's determination as to eligibility for relief
and the nature of the relief to be granted does not
require the concurrence or approval of any official,
department, or agency to which such a determination is
submitted. Not later than 150 days from the date of the
Secretary's initiation of an assessment, the Secretary
shall respond in writing to the petitioner and submit
for publication in the Federal Register, that--
(i) relief is required and--
(I) the requirement of a validated
license has been removed;
(II) the control status of all or
some of the items in question has been
changed so as to eliminate any
significant competitive disadvantage;
(III) the sale of controlled items
have been approved so as to eliminate
any significant competitive
disadvantage;
(IV) pursuant to paragraph (5),
export controls under this section must
be maintained notwithstanding the
finding under paragraph (2) and the
applicable steps are being taken under
subparagraph (C) this paragraph; or
(V) the United States
recommendation to remove the validated
license requirement or change the
control status will be submitted to a
relevant multilateral regime for
consideration for a period of not more
than 180 days beginning on the date of
the publication; or
(ii) a right to relief under paragraph (2)
does not exist.
In any case in which the submission for publication is
not made within 150 days of the date of the Secretary's
initiation of an assessment, the Secretary may not
thereafter require a license for the export of items
that are the subject of the allegation under paragraph
(2). In the case of a determination made under
subsection (k)(6)(B)(1)(e) to refer a proposed relief
to the relevant multilateral regime, no license for
such export may be required after 330 days from the
date of the Secretary's initiation of an assessment
unless the Secretary shall make a finding under
paragraph (4) or grant other relief under paragraph
(3).
(C) Negotiations to eliminate foreign
availability.--
(i) In any case in which export controls
are maintained under this section pursuant to
paragraph (4), the Secretary of State shall
actively pursue negotiations with the
governments of the appropriate foreign
countries for the purpose of eliminating such
foreign availability or competitive
disadvantage. No later than the commencement of
such negotiations, the Secretary of State shall
notify in writing the Committee on Banking,
Housing, and Urban Affairs of the Senate and
the Committee on Foreign Affairs of the House
of Representatives that he has begun such
negotiations and why he believes it is
important that export controls on the items
involved be maintained to avoid a significant
risk to the foreign policy, nonproliferation,
or national security interests of the United
States.
(ii) Whenever the Secretary of State has
reason to believe that items subject to export
controls by the United States may become
available from other countries to target
countries and that such availability can be
prevented or eliminated by means of
negotiations with such other countries, the
Secretary of State shall promptly initiate
negotiations with the governments of such other
countries to prevent such foreign availability.
(7) Sharing of information.--Each department or agency of
the United States, including any intelligence agency, and all
contractors with any such department or agency, shall, upon the
request of the Secretary and consistent with the protection of
intelligence sources and methods, furnish information to the
Commerce Department concerning foreign availability of items
subject to export controls under this section. Consistent with
the protection of intelligence sources and methods and
classification restrictions, each such department or agency
shall allow the Commerce Department access to such information
from a laboratory or other facility within such department or
agency.
(8) Availability defined.--For the purposes of this
subsection, the term ``available in fact to target countries''
includes production or availability of any item from any
country--
(A) where the item is not restricted for export to
any target country; or
(B) where the export restrictions are determined by
the Secretary to be ineffective.
For purposes of subparagraph (B), the mere inclusion of items
on a list of items subject to multilateral export controls
shall not alone constitute credible evidence that a government
of a country provides an effective means of controlling the
export of such items to target countries.
(9) Congressional notification and reporting
requirements.--The Secretary shall each year notify the
Committee on Foreign Affairs of the House of Representatives
and the Committee on Banking, Housing, and Urban Affairs of the
Senate of all petitions for relief and the status of all such
petitions.
(l) Unilateral Controls Prohibited.--
(1) Any export controls imposed unilaterally by the United
States for purposes adopted by the group known as the
Coordinating Committee shall expire 6 months after the date of
enactment of this paragraph, or 6 months after the export
control is imposed, whichever date is later, except that--
(A) any such export controls on those items for
which a determination of the Secretary that there is no
foreign availability has been made under this section
before the end of the applicable 6-month period and is
in effect may be renewed for periods of not more than 6
months each; and
(B) any such export controls on those items with
respect to which the President, by the end of the
applicable 6-month period, is actively pursuing
negotiations with other countries to achieve
multilateral export controls on those items may be
renewed for 2 periods of not more than 6 months each.
(2) Export controls on items described in subparagraph (A)
or (B) of paragraph (1) above may be renewed only if, before
each renewal, the Secretary submits to the Congress a report
setting forth all the controls being renewed and stating the
specific reasons for such renewal.
(m) International Obligations.--Notwithstanding other provisions of
this Act containing limitations on authority to control imports and
exports, pursuant to this paragraph and in order to fulfill obligations
of the United States pursuant to resolutions of the United Nations,
treaties, or other international agreements to which the United States
is a party, the Secretary, in consultation with appropriate departments
and agencies, may impose controls on exports and imports to and from a
target country or region. The Secretary may regulate domestic and
foreign conduct consistent with the policies of such United Nations
resolutions, treaties, and international agreements. Such authority
shall include, but not be limited to, the authority to prohibit
activity such as financing, contracting, servicing or employment, to
deny access to items in the United States and abroad, to conduct audits
of records and inspections of facilities, to compel reports, and to
curtail travel.
(n) Information Sharing.--The Secretary and appropriate officials
of the intelligence community, as determined by the Director of Central
Intelligence, and other appropriate Government agencies shall establish
a procedure for information sharing.
(o) Denied Parties, Sanctioned Parties, Specially Designated
Nationals, and Other Parties Presenting Unacceptable Risks of
Diversion.--
(1) Denied parties, sanctioned parties, specially
designated nationals.--The Secretary shall publish parties
denied export privileges under this Act, parties sanctioned for
prohibited proliferation activity under this Act or other
statutes, and specially designated nationals named under the
International Emergency Economic Powers Act, as amended, 50
U.S.C. 1701, et seq. (1988).
(2) Other parties.--The Secretary shall maintain a list of
parties for whom licenses will be presumptively denied.
(p) Freedom of Information Act Exemption.--The identity of parties
maintained or disclosed pursuant to subsection (o)(2) is not subject to
disclosure under section 552 of title 5, United States Code.
SEC. 6. SHORT SUPPLY CONTROLS.
(a) Authority.--
(1) In order to carry out the policy set forth in section
3(2)(D) of this Act, the President may prohibit or curtail the
export of any items subject to the jurisdiction of the United
States or exported by any person subject to the jurisdiction of
the United States. In curtailing exports to carry out the
policy set forth in section 3(2)(D) of this Act, the President
shall allocate a portion of export licenses on the basis of
factors other than a prior history of exportation. Such factors
shall include the extent to which a country engages in
equitable trade practices for United States items and treats
the United States equitably in times of short supply.
(2) Upon imposing quantitative restrictions on exports of
any items to carry out the policy set forth in section 3(2)(D)
of this Act, the Secretary shall include in a notice published
in the Federal Register regarding such restrictions an
invitation to all interested parties to submit written comments
within 15 days from the date of publication on the impact of
such restrictions and the method of licensing used to implement
them.
(3) Notwithstanding subsection 4(h) of this Act, in
imposing export controls under this section, the President's
authority shall include, but not be limited to, the imposition
of export license fees.
(b) Monitoring.--
(1) In order to carry out the policy set forth in section
3(2)(D) of this Act, the Secretary shall monitor exports, and
contracts for exports, of any good (other than a commodity
which is subject to the reporting requirements of section 182
of the Agricultural Act of 1970 (7 U.S.C. 612c-3)) when the
volume of such exports in relation to domestic supply
contributes, or may contribute, to an increase in domestic
prices or a domestic shortage, and such price increase or
shortage has, or may have, a serious adverse impact on the
economy or any sector thereof. Any such monitoring shall
commence at a time adequate to assure that the monitoring will
result in a data base sufficient to enable policies to be
developed, in accordance with section 3(2)(D) of this Act, to
mitigate a short supply situation or serious inflationary price
rise or, if export controls are needed, to permit imposition of
such controls in a timely manner. Information which the
Secretary requires to be furnished in effecting such monitoring
shall be confidential, except as provided in paragraph (2) of
this subsection.
(2) The results of such monitoring shall, to the extent
practicable, be aggregated and included in weekly reports
setting forth, as to each item monitored, actual and
anticipated exports, the destination by country, and the
domestic and worldwide price, supply, and demand. Such reports
may be made monthly if the Secretary determines that there is
insufficient information to justify weekly reports.
(c) Domestically-Produced Crude Oil.--
(1) Notwithstanding any other provision of this Act and
notwithstanding subsection (u) of section 28 of the Mineral
Leasing Act of 1920 (30 U.S.C. 185), no domestically-produced
crude oil transported by pipeline over right-of-way granted
pursuant to section 203 of the TransAlaska Pipeline
Authorization Act (43 U.S.C. 1652) (except any such crude oil
which (A) is exported to an adjacent foreign country to be
refined and consumed therein in exchange for the same quantity
of crude oil being exported from that country to the United
States, which exchange must result, through convenience or
increased efficiency of transportation, in lower prices for
consumers of petroleum products in the United States as
described in paragraph (2)(A)(ii) of this subsection; (B) is
temporarily exported for convenience or increased efficiency of
transportation across parts of an adjacent foreign country and
reenters the United States; or (C) is transported to Canada, to
be consumed therein, in amounts not to exceed an annual average
of 50,000 barrels per day, in addition to exports under
subparagraphs (2)(A) and (2)(B), except that any ocean
transportation of such oil shall be by vessels documented under
section 12106 of title 46, United States Code) may be exported
from the United States, or any of its territories and
possessions, subject to paragraph (2) of this subsection.
(2) Crude oil subject to the prohibition contained in
paragraph (1) may be exported only if--
(A) the President so recommends to the Congress
after making and publishing express findings that
exports of such crude oil, including exchanges--
(i) will not diminish the total quantity or
quality of petroleum refined within, stored
within, or legally committed to be transported
to and sold within the United States;
(ii) will, within 3 months following the
initiation of such exports or changes, result
in (I) acquisition costs to the refiners which
purchase the imported crude oil being lower
than the acquisition costs such refiners would
have to pay for the domestically-produced oil
in the absence of such an export or exchange,
and (II) not less than 75 percent of such
savings in costs being reflected in wholesale
and retail prices of products refined from such
imported crude oil;
(iii) will be made only pursuant to
contracts which may be terminated if the crude
oil supplies of the United States are
interrupted, threatened, or diminished;
(iv) are clearly necessary to protect the
national interest; and
(v) are in accordance with the provisions
of this Act; and
(B) the President includes such findings in his or
her recommendation to the Congress and the Congress,
within 60 days after receiving that recommendation,
agrees to a joint resolution which approves such
exports on the basis of those findings, and which is
thereafter enacted into law.
(3) Notwithstanding any other provision of this section or
any other section or any other provision of law, including
subsection (u) of section 28 of the Mineral Leasing Act of 1920
(30 U.S.C. 185(u)), the President may export oil to any country
pursuant to a bilateral international oil supply agreement
entered into by the United States with such nation before June
25, 1979, or to any country pursuant to the International
Emergency Oil Sharing Plan of the International Energy Agency.
(d) Agriculture commodities.--
(1) The Authority conferred by this section shall not be
exercised for any agricultural commodity, including fats and
oils or animal hides or skins, without the approval of the
Secretary of Agriculture. The Secretary of Agriculture shall
not approve the exercise of such authority for any such
commodity during any period for which the supply of such
commodity is determined by the Secretary of Agriculture to be
in excess of the requirements of the domestic economy except to
the extent the President determines that such exercise of
authority is required to carry out the policies set forth in
subparagraph (B) or (C) of paragraph (2) of section 3 of this
Act. The Secretary of Agriculture shall, by exercising the
authority which the Secretary of Agriculture has under other
applicable provisions of law, collect data on export sales of
animal hides and skins.
(2) Upon approval of the Secretary, in consultation with
the Secretary of Agriculture, agricultural commodities
purchased by or for use in a foreign country may remain in the
United States for export at a later date free from any
quantitative limitations on export which may be imposed to
carry out the policy set forth in section 3(2)(D) of this Act
subsequent to such approval. The Secretary may not grant such
approval unless the Secretary receives adequate assurance and,
in conjunction with the Secretary of Agriculture, finds (A)
that such commodities will eventually be exported, (B) that
neither the sale nor export thereof will result in an excessive
drain of scarce materials and have a serious domestic
inflationary impact, (C) that storage of such commodities in
the United States will not unduly limit the space available for
storage of domestically-owed commodities, and (D) that the
purpose of such storage is to establish a reserve of such
commodities for later use, not including resale to or use by
another country. The Secretary may issue such regulations as
may be necessary to implement this paragraph.
(3)(A) If the President imposes export controls on any
agricultural commodity in order to carry out the policy set
forth in paragraph (2)(B), (2)(C), 2(D), or (12) of section 3
of this Act, the President shall immediately transmit a report
on such action to the Congress, setting forth the reasons for
the controls in detail and specifying the periods of time,
which may not exceed 1 year, that the controls are proposed to
be in effect. If the Congress, within 60 days after the date of
its receipt of the report, adopts a joint resolution pursuant
to paragraph (4) approving the imposition of the export
controls, then such controls shall remain in effect for the
period specified in the report, or until terminated by the
President, whichever occurs first. If the Congress, within 60
days after the date of its receipt of such report, fails to
adopt a joint resolution approving such controls, then such
controls shall cease to be effective upon the expiration of
that 60-day period.
(B) The provisions of subparagraph (A) and paragraph (4)
shall not apply to export controls--
(i) which are extended under this Act if the
controls, when imposed, were approved by the Congress
under subparagraph (A) and paragraph (4); or
(ii) which are imposed on exports to a country as
part of the prohibition or curtailment of all exports
to that country.
(4)(A) For purposes of this paragraph, the term ``joint
resolution'' means only a joint resolution the matter after the
resolving clause of which is as follows: ``That pursuant to
section 6(d)(3) of the Export Administration Act of 1979, the
President may impose export controls as specified in the report
submitted to the Congress on .'', with the
blank space being filled with the appropriate date.
(B) On the day on which a report is submitted to the House
of Representatives and the Senate under paragraph (3), a joint
resolution on the export controls specified in such report
shall be introduced (by request) in the House by the chairman
of the Committee on Foreign Affairs, for himself and the
ranking minority member of the Committee, or by Members of the
House designated by the chairman and ranking minority member;
and shall be introduced (by request) in the Senate by the
majority leader of the Senate, for himself and the minority
leader of the Senate, or by Members of the Senate designated by
the majority leader and minority leader of the Senate. If
either House is not in session on the day on which such a
report is submitted, the joint resolution shall be introduced
in that House, as provided in the preceding sentence, on the
first day thereafter on which that House is in session.
(C) All joint resolutions introduced in the House of
Representatives shall be referred to the appropriate committee
and all joint resolutions introduced in the Senate shall be
referred to the Committee on Banking, Housing, and Urban
Affairs.
(D) If the committee of either House to which a joint
resolution has been referred has not reported the joint
resolution at the end of 30 days after its referral, the
committee shall be discharged from further consideration of the
resolution or of any other joint resolution introduced on the
same matter.
(E) A joint resolution under this paragraph shall be
considered in the Senate in accordance with the provisions of
section 601(b)(4) of the International Security Assistance and
Arms Export Control Act of 1976 (22 U.S.C. 2151 et seq., Public
Law 94-329, June 30, 1976). For the purpose of expediting the
consideration and passage of joint resolutions reported or
discharged pursuant to the provisions of this paragraph, it
shall be in order for the Committee on Rules of the House of
Representatives to present for consideration a resolution of
the House of Representatives providing procedures for the
immediate consideration of a joint resolution under this
paragraph which may be similar, if applicable, to the
procedures set forth in section 601(b)(4) of the International
Security Assistance and Arms Export Control Act of 1976.
(F) In the case of a joint resolution described in
subparagraph (A), if, before the passage by one House of a
joint resolution of that House, that House receives a
resolution on the same matter from the other House, then--
(i) the procedure in the House shall be the same as
if no joint resolution has been received from the other
House; but
(ii) the vote on final passage shall be on the
joint resolution of the other House.
(5) In the computation of the period of 60 days referred to
in paragraph (3) and the period of 30 days referred to in
subparagraph (D) of paragraph (4), there shall be excluded the
days on which either House of Congress is not in session
because of an adjournment of more than 3 days to a day certain
or because of an adjournment of the Congress sine die.
(e) Barter Agreements.--
(1) The exportation pursuant to a barter agreement of any
items which may lawfully be exported from the United States,
for any items which may lawfully be imported into the United
States, may be exempted, in accordance with paragraph (2) of
this subsection, from any quantitative limitation on exports
(other than any reporting requirement) imposed to carry out the
policy set forth in section 3(2)(D) of this Act.
(2) The Secretary shall grant an exemption under paragraph
(1) if the Secretary finds, after consultation with the
appropriate department or agency of the United States, that--
(A) for the period during which the barter
agreement is to be performed--
(i) the average annual quantity of the
items to be exported pursuant to the barter
agreement will not be required to satisfy the
average amount of such items estimated to be
required annually by the domestic economy and
will be surplus thereto; and
(ii) the average annual quantity of the
items to be imported will be less than the
average amount of such items estimated to be
required annually to supplement domestic
production; and
(B) the parties to such barter agreement have
demonstrated adequately that they intend, and have the
capacity, to perform such barter agreement.
(3) For purposes of this subsection, the term ``barter
agreement'' means any agreement which is made for the exchange,
without monetary consideration, of any items produced in the
United States for any items produced outside of the United
States.
(4) This subsection shall apply only to barter agreements
entered into after September 30, 1979.
(f) Unprocessed Red Cedar.--No unprocessed western red cedar logs
(Thuja plicata) harvested from State or Federal lands may be exported
from the United States.
(1) Unprocessed western red cedar logs shall not be
considered to be an agricultural commodity for purposes of
subsection (d) of this section.
(2) As used in this subsection, the term ``unprocessed
western red cedar'' means red cedar timber which has not been
processed into--
(A) lumber of American Lumber Standards Grades of
Number 3 dimension or better, or Pacific Lumber
Inspection Bureau Export R-List Grades of Number 3
common or better;
(B) chips, pulp, and pulp products;
(C) veneer and plywood;
(D) poles, posts, or pilings cut or treated with
preservative for use as such and not intended to be
further processed; or
(E) shakes and shingles.
(3) The State of Alaska is exempt from the provisions of
this subsection (Public Law No. 96-126, 93 Stat. 954, section
308 (1979)).
(g) Effect of Controls on Existing Contracts.--The export
restrictions contained in subsection (f) of this section and any export
controls imposed under this section shall not affect any contract to
harvest unprocessed western red cedar from State lands which was
entered into before October 1, 1979, and the performance of which would
make the red cedar available for export. Any export controls imposed
under this section on any agricultural commodity (including fats, oils,
and animal hides and skins) or on any forest product or fishery
product, shall not affect any contract to export entered into before
the date on which such controls are imposed. For purposes of this
subsection, the term ``contract to export'' includes, but is not
limited to, an export sales agreement and an agreement to invest in an
enterprise which involves the export of goods or technology.
(h) Oil Exports for Use by United States Military Facilities.--For
purposes of subsection (c) of this section, and for purposes of any
export controls imposed under this Act, shipments of crude oil, refined
petroleum products, or partially refined petroleum products from the
United States for use by the Department of Defense or United States-
supported installations or facilities shall not be considered to be
exports.
SEC. 7. FOREIGN BOYCOTTS.
(a) Prohibitions and Exceptions.--
(1) For the purpose of implementing the policies set forth
in subparagraph (A) and (B) of paragraph (14) of section 3 of
this Act, the President shall issue regulations prohibiting any
United States person, with respect to his or her activities in
the interstate or foreign commerce of the United States, from
taking or knowingly agreeing to take any of the following
actions with the intent to comply with, further, or support any
boycott fostered or imposed by a foreign country against a
country which is friendly to the United States and which is not
itself the object of any form of boycott pursuant to United
States law or regulation:
(A) Refusing, or requiring any other person to
refuse, to do business with or in the boycotted
country, with any business concern organized under the
laws of the boycotted country, with any national or
resident of the boycotted country, or with any other
person, pursuant to an agreement with, a requirement
of, or a request from or on behalf of the boycotting
country. The mere absence of a business relationship
with or in the boycotted country with any business
concern organized under the laws of the boycotted
country, with any national or resident of the boycotted
country, or with any other person, does not indicate
the existence of the intent required to establish a
violation of regulations issued to carry out this
subparagraph.
(B) Refusing, or requiring any other person to
refuse, to employ or otherwise discriminating against
any United States person on the basis of race,
religion, sex, or national origin of that person or of
any owner, officer, director, or employee of such
person.
(C) Furnishing information with respect to the
race, religion, sex, or national origin of any United
States person or of any owner, officer, director, or
employee of such person.
(D) Furnishing information about whether any person
has, has had, or proposes to have any business
relationship (including a relationship by way of sale,
purchase, legal, or commercial representation, shipping
or other transport, insurance, investment, or supply)
with or in the boycotted country, with any business
concern organized under the laws of the boycotted
country, with any national or resident of the boycotted
country, or with any other person known or believed to
be restricted from having any business relationship
with or in the boycotted country. Nothing in this
paragraph shall prohibit the furnishing of normal
business information in a commercial context as defined
by the Secretary.
(E) Furnishing information about whether any person
is a member of, has made contribution to, or is
otherwise associated with or involved in the activities
of any charitable or fraternal organization which
supports the boycotted country.
(F) Paying, honoring, confirming, or otherwise
implementing a letter of credit which contains any
condition or requirement compliance with which is
prohibited by regulations issued pursuant to this
paragraph, and no United States person shall, as a
result of the application of this paragraph, be
obligated to pay or otherwise honor or implement such
letter of credit.
(2) Regulations issued pursuant to paragraph (1) shall
provide exceptions for--
(A) complying or agreeing to comply with
requirements (i) prohibiting the import of items or
services from the boycotted country or items produced
or services provided by any business concern organized
under the laws of the boycotted country or by nationals
or residents of the boycotted country, or (ii)
prohibiting the shipment of items to the boycotted
country on a carrier of the boycotted country, or by a
route other than that prescribed by the boycotting
country or the recipient of the shipment;
(B) complying or agreeing to comply with import and
shipping document requirements with respect to the
country of origin, the name of the carrier and route of
shipment, the name of the supplier of the shipment or
the name of the provider of other services, except that
no information knowingly furnished or conveyed in
response to such requirements may be stated in
negative, blacklisting, or similar exclusionary terms,
other than with respect to carriers or route of
shipment as may be permitted by such regulations in
order to comply with precautionary requirements
protecting against war risks and confiscation;
(C) complying or agreeing to comply in the normal
course of business with the unilateral and specific
selection by a boycotting country, or national or
resident thereof, of carriers, insurers, suppliers of
services to be performed within the boycotting country
or specific items which, in the normal course of
business, are identifiable by source when imported into
the boycotting country;
(D) complying or agreeing to comply with export
requirements of the boycotting country relating to
shipments or transshipment of exports to the boycotted
country, to any business concern of or organized under
the laws of the boycotted country, or to any national
or resident of the boycotted country;
(E) compliance by an individual or agreement by an
individual to comply with the immigration or passport
requirements of any country with respect to such
individual or any member of such individual's family or
with requests for information regarding requirements of
employment of such individual within the boycotting
country; and
(F) compliance by a United States person resident
in a foreign country or agreement by such person to
comply with the laws of the country with respect to his
or her activities exclusively therein, and such
regulations may contain exceptions for such resident
complying with the laws or regulations of the foreign
country governing imports into such country of
trademarked, trade named, or similarly specifically
identifiable products, or components of products for
his or her own use, including the performance of
contractual services within that country, as may be
defined by such regulations.
(3) Regulations issued pursuant to paragraphs (2)(C) and
(2)(F) shall not provide exceptions from paragraphs (1)(B) and
(1)(C).
(4) Nothing in this subsection may be construed to
supersede or limit the operation of the antitrust or civil
rights laws of the United States.
(5) This section shall apply to any transaction or activity
undertaken, by or through a United States person or any other
person, with intent to evade the provisions of this section as
implemented by the regulations issued pursuant to this
subsection, and such regulations shall expressly provide that
the exceptions set forth in paragraph (2) shall not permit
activities or agreements (expressed or implied by a course of
conduct, including a pattern of responses) otherwise
prohibited, which are not within the intent of such exceptions.
(b) Regulations.--
(1) In addition to the regulations issued pursuant to
subsection (a) of this section, regulations issued under this
subsection of this Act shall implement the policies set forth
in section 3(14).
(2) Such regulations shall require that any United States
person receiving a request for the furnishing of information,
the entering into or implementing of agreements, or the taking
of any other action referred to in section 3(14) shall report
that fact to the Secretary, together with such other
information concerning such request as the Secretary may
require for such action as the Secretary considers appropriate
for carrying out the policies of that section. Such person
shall also report to the Secretary whether such person intends
to comply and whether such person has complied with such
request. Any report filed pursuant to this paragraph shall be
made available promptly for public inspection and copying,
except that information regarding the quantity, description,
and value of any items to which such report relates may be kept
confidential if the Secretary determines that disclosure
thereof would place the United States person involved at a
competitive disadvantage. The Secretary shall periodically
transmit summaries of the information contained in such reports
to the Secretary of State for such action as the Secretary of
State, in consultation with the Secretary, considers
appropriate for carrying out the policies set forth in section
3(14) of this Act.
(c) Preemption.--The provisions of this section and the regulations
issued pursuant thereto shall preempt any law, rule, or regulation of
any of the several States or the District of Columbia, or any of the
territories or possessions of the United States, or of any governmental
subdivision thereof, which law, rule, or regulation pertains to
participation in, compliance with, implementation of, or the furnishing
of information regarding restrictive trade practices or boycotts
fostered or imposed by foreign countries against other countries.
SEC. 8. PROCEDURES FOR PROCESSING EXPORT LICENSE APPLICATIONS; OTHER
INQUIRIES.
(a) Primary Responsibility of the Secretary.--
(1) All export license applications required under this Act
shall be submitted by the applicant to the Secretary. All
determinations on any such applications shall be made by the
Secretary, subject to the procedures provided in this section.
(2) To the extent necessary, the Secretary shall seek
information and recommendations from the Government departments
and agencies concerned with factors having an important bearing
on exports administered under this Act. Such departments and
agencies shall cooperate fully and promptly in rendering
information and recommendations.
(3) In 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 the extent of any multilateral review of
a given license application.
(4) In calculating the processing times set forth in this
section, the Secretary shall use calendar days; provided that
if the final day for a required action falls on a weekend or
holiday, that action shall be taken no later than the following
business day.
(5) In reviewing applications for validated export
licenses, the Secretary may in each case consider the
reliability of the parties to the proposed export. In making
such an evaluation, the Secretary may consider all sources of
information, including intelligence information. However, the
consideration of intelligence information in connection with
the evaluation of the reliability of parties shall not
authorize the direct or indirect disclosure of classified
information or sources and methods of gathering classified
information.
(b) Initial Screening.--
(1) Upon receipt of any export license application, the
Secretary shall include receipt and status information
regarding the application in the records of the Department.
(2) Within 9 days of receipt of any license application,
the Secretary shall--
(A) contact the applicant if the application is
improperly completed or if additional information is
required, and hold the application for a reasonable
time while the applicant provides the necessary
corrections or information. Such time shall not be
counted in calculating the time periods prescribed in
this section;
(B) refer the application and all necessary
recommendations and analyses by the Secretary to all
other agencies, when such referral is requested, and
forward to the agencies any relevant information
submitted by the applicant that could not be reduced to
electronic form; and
(C) assure the stated classification on the
application is correct; return the application if a
validated license is not required; and, if referral to
other agencies is not requested, grant the application
or notify the applicant of the Secretary's intent to
deny the application.
(c) Action by Other Departments and Agencies.--
(1) At the direction of the President, the Secretary shall
refer license applications to appropriate departments and
agencies to make recommendations and provide information to the
Secretary.
(2) Reviewing agencies shall organize their resources and
units to plan for the prompt and expeditious internal
dissemination of export license applications, if necessary, so
as to avoid delays in responding to the Secretary's request for
information and recommendations.
(3) Each referral agency or department shall specify to the
Secretary any information that is not in the application that
would be required to make a determination, and the Secretary
shall promptly request such information from the applicant. The
time that may elapse between the date the information is
requested from the applicant and the date the information is
received by the Secretary shall not be counted in calculating
the time periods prescribed in this section.
(4) Within 30 days of receipt of a referral, the agency or
department shall provide the Secretary with a recommendation
either to approve the license or to deny the license. As
appropriate, such recommendation shall be with the benefit of
consultation and discussions in interagency groups established
to provide expertise and coordinate interagency consultation. A
recommendation that the Secretary deny a validated license
shall include a statement of reasons that are consistent with
the provisions of this Act, and shall cite both the statutory
and the regulatory basis for the recommendation to deny. A
department or agency that fails to provide a recommendation
within thirty days with a statement of reasons and the
statutory and regulatory basis shall be deemed to have no
objection to the decision of the Secretary.
(5) An interagency committee shall be established by and
the chairman selected by the Secretary to review initially all
license applications on which the reviewing agencies are not in
agreement. The chairman of such committee shall consider the
recommendations of the reviewing agencies and inform them of
his or her decision. Appeals from such decisions may be made in
writing by an official of such department or agency who is
appointed by the President by and with the advice and consent
of the Senate, or an officer properly acting in such capacity,
consistent with procedures established by the President in
accordance with subsection (d).
(6) Upon receiving all comments from other departments and
agencies regarding an application upon which there is no
disagreement, or 49 days following receipt of a license
application upon which there has been disagreement, whichever
comes first, the Secretary shall either--
(A) approve the application and issue the license;
or
(B) notify the applicant of the intent to deny the
license; or
(C) notify the applicant the application has been
referred to a process established by the President to
resolve matters in dispute.
(d) Interagency Resolution.--The President may establish a process
for the review and determination of export license applications as to
which a reviewing agency has objected pursuant to subsection (c). Any
such process shall (1) be chaired by the Secretary or his designee; (2)
insure that license applications are resolved or referred to the
President no later than 90 days from the date of filing of the license
application; and (3) provide that a department or agency that fails to
take a timely position shall be deemed to have no objection to the
pending decision.
(e) Actions by the Secretary.--
(1) When no referral to other departments or agencies is
required, the Secretary shall issue a license or notify the
applicant of the intent to deny within nine days of receipt of
the application.
(2) In cases where the Secretary has determined that an
application should be denied, the applicant shall be informed
in writing of--
(A) the determination to deny;
(B) the statutory and regulatory basis for the
proposed denial;
(C) what, if any, modifications in or restrictions
on the items for which the license was sought would
allow such export to be compatible with export controls
imposed under this Act, and which officer or employee
of the Department of Commerce would be in a position to
discuss modifications or restrictions with the
applicant;
(D) to the extent consistent with the national
security and foreign policy of the United States, the
specific considerations that led to the determination
to deny the application; and
(E) the availability of appeal procedures.
The Secretary shall allow the applicant 20 days to respond to
the determination before the license application is denied.
(3) The Secretary and the applicant may, at any time, agree
mutually to suspend the time periods prescribed by this section
in order to negotiate modifications to the application and
obtain agreement to such modifications from the foreign parties
to the transaction.
(f) Multilateral Controls.--When an application recommended for
approval must be submitted to a multilateral review process, pursuant
to a multilateral regime, formal or informal, to which the United
States is a party, the application shall be referred to the
multilateral regime within 5 days of the decision to approve. Any such
application shall be considered in accordance with the review
procedures established by the relevant multilateral export control
regime, and the license shall be issued or a notice of intent to deny
issued within 5 days of receipt of a decision by the multilateral
regime.
(g) Exceptions From Required Time Periods.--All license
applications shall be resolved or referred to the President no later
than 90 days from the date of filing of the license application. The
following actions related to processing an application shall not be
counted in calculating the time periods prescribed in this section:
(1) Agreement of the applicant.--Delays in processing
required by unusually complex technical review or by need to
complete a high-level policy review, when the Secretary and the
applicant mutually agree to the delay.
(2) Prelicense checks.--Prelicense checks through
government channels that may be required to establish the
identity and reliability of the recipient of items controlled
under this Act, provided--
(A) the need for such prelicense check is
established by the Secretary, or by another department
or agency, if the request for prelicense check is made
by such department or agency;
(B) the request for such prelicense check is sent
by the Secretary within 5 days for the determination
that the prelicense check is required; and
(C) the analysis of the response to the request for
prelicense check is completed by the Secretary within 5
days.
(3) Requests for government-to-government assurances.--
Requests for government-to-government assurances of suitable
end use of items approved for export, when failure to obtain
such assurances would result in rejection of the application,
provided that the request for such assurances is sent to the
Secretary of State within 5 days of the determination that the
assurances are required, provided the Secretary of State
initiates the request of the relevant government within 10 days
thereafter, and provided the license is issued within 5 days of
receipt by the Secretary of the requested assurances.
Whenever such prelicense checks and assurances are not requested within
the time periods set forth above, they must be accomplished within the
time periods established by this section.
(4) Multilateral review.--Multilateral review of a license
application as provided for in subsection (f) so long as such
multilateral review is required by the relevant multilateral
regime.
(5) Congressional notification.--Such time as required for
mandatory Congressional notifications under this Act.
(h) Appeals.--
(1) The Secretary shall establish appropriate procedures
for any applicant to appeal to the Secretary the denial or an
export license application or other administrative action.
(2) In any case in which any action prescribed in this
section is not taken on the license application within the time
periods established by this section (except in the case of a
time period extended under subsection (g)(4) of which the
applicant is notified), the applicant may file a petition with
the Secretary requesting compliance with the requirements of
this section. When such petition is filed, the Secretary shall
take immediate steps to correct the situation giving rise to
the petition and shall immediately notify the applicant of such
steps.
(3) If, within 20 days after a petition is filed under
paragraph (2), the processing of the application has not been
brought into conformity with the requirements of this section,
or the application has been brought into conformity with such
requirements but the Secretary has not so notified the
applicant, the applicant may bring an action in an appropriate
United States district court for an order requiring compliance
with the temporal requirements of this section. The United
States district courts shall have jurisdiction to provide such
relief, as appropriate.
(i) Classification Requests and Other Inquiries.--
(1) In any case in which the Secretary receives a written
request asking for the proper classification of an item on the
Control List, the Secretary shall, within 14 days after receipt
of the request, inform the person making the request of the
proper classification.
(2) In any case in which the Secretary receives a written
request for information about the applicability of export
license requirements under this Act to a proposed export
transaction or series of transactions, the Secretary shall,
within 30 days after the receipt of the request, reply with
that information to the person making the request.
SEC. 9. VIOLATIONS.
(a) Criminal Penalties.--
(1) Violations by an individual.--Except as provided in
paragraph (3) below, any individual who knowingly violates or
conspires to or attempts to violate any provision of this Act
or any regulation, license, or order issued thereunder shall be
fined not more than 5 times the value of the exports involved
or $500,000 per violation, whichever is greater, or imprisoned
not more than 10 years, or both.
(2) Violation by a person other than an individual.--Except
as provided in paragraph (3) below, any person other than an
individual who knowingly violates or conspires to or attempts
to violate any provision of this Act or any regulation, license
or order issued thereunder shall be fined not more than 10
times the value of the exports involved or $1,000,000 per
violation, whichever is greater.
(3) Antiboycott violations.--Any individual who knowingly
violates or conspires to or attempts to violate any provision
of section 7 of this Act concerning foreign boycotts or any
regulation or order issued thereunder shall be fined not more
than 5 times the value of the exports involved or $250,000 per
violation, whichever is greater, or imprisoned not more than 10
years, or both. Any person other than an individual who
knowingly violates or conspires to or attempts to violate any
provision of section 7 of this Act or any regulation or order
issued thereunder shall be fined not more than 5 times the
value of the exports involved or $500,000 per violation,
whichever is greater.
(b) Forfeiture of Property Interest and Proceeds.--
(1) Any person who is convicted under subsection (a) (1) or
(2) shall, in addition to any other penalty, forfeit to the
United States--
(A) any of that person's interest in, security of,
claim against, or property or contractual rights of any
kind in the goods or tangible items that were the
subject of the violation;
(B) any of that person's interest in, security of,
claim against, or property or contractual rights of any
kind in tangible property that was used in the export
or attempt to export that was the subject of the
violation; and
(C) any of that person's property constituting, or
derived from, any proceeds obtained directly or
indirectly as a result of the violation.
(2) The procedures in any forfeiture under this subsection,
and the duties and authority of the courts of the United States
and the Attorney General with respect to any forfeiture action
under this subsection or with respect to any property that may
be subject to forfeiture under this subsection, shall be
governed by the provisions of chapter 46 of title 18, United
States Code.
(c) Civil Penalties; Administrative Sanctions.--
(1) The Secretary may impose a civil penalty not to exceed
$250,000 for each violation of this Act or any regulation,
license or order issued under this Act, either in addition to
or in lieu of any other liability or penalty which may be
imposed, except that the civil penalty for each such violation
involving section 7 of this Act concerning foreign boycotts may
not exceed $50,000.
(2) The Secretary may deny the export privileges of any
person, including suspending or revoking the authority of any
person to export or receive any item subject to this Act, for
any violation of the provisions of this Act or any regulation,
license or order issued under this Act.
(d) Procedures Relating to Civil Penalties and Sanctions.--
(1) Any administrative sanction imposed under subsection
(c) above may be imposed only after notice and opportunity for
an agency hearing on the record in accordance with sections 554
through 557 of title 5, United States Code. The imposition of
any such administrative sanction shall be subject to judicial
review in accordance with sections 701 through 706 of title 5,
United States Code.
(2) Any charging letter or other document initiating
administrative proceedings for the imposition of sanctions for
violations of the regulations issued pursuant to section 7(a)
of this Act shall be made available for public inspection and
copying.
(e) Payment of Civil Penalties.--The payment of any civil penalty
imposed pursuant to subsection (c) may be made a condition, for a
period not exceeding 1 year after the penalty has become due but has
not been paid, to the granting, restoration, or continuing validity of
any export license, permission, or privilege granted or to be granted
to the person upon whom such penalty is imposed. In addition, the
payment of any civil penalty imposed under subsection (c) may be
deferred or suspended in whole or in part for a period of time no
longer than any probation period (which may exceed 1 year) that may be
imposed upon such person. Such deferral or suspension shall not operate
as a bar to the collection of the penalty in the event that the
conditions of the suspension, deferral, or probation are not fulfilled.
(f) Refunds.--Any amount paid in satisfaction of any civil penalty
imposed pursuant to subsection (c) shall be covered into the Treasury
as a miscellaneous receipt. The head of the department or agency
concerned may, in his discretion, refund any such civil penalty imposed
pursuant to subsection (c), within 2 years after payment, on the ground
of a material error of fact or law in the imposition of the penalty.
Notwithstanding section 1346(a) of title 28, United States Code, no
action for the refund of any such penalty may be maintained in any
court.
(g) Collection--If any person fails to pay a civil penalty imposed
pursuant to subsection (c) of this Act, the Secretary may ask the
Attorney General to bring a civil action in an appropriate district
court to recover the amount imposed (plus interest at currently
prevailing rates from the date of the final order). Any such action
must be commenced within 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.
(h) Prior Convictions.--
(1) At the discretion of the Secretary, export privileges
under this Act may be denied for a period of up to 10 years
from the date of conviction to any person convicted of a
violation of this Act or its predecessor statute, the Export
Administration Act of 1979; the International Emergency
Economic Powers Act, title 50, United States Code, sections
1701-1706; sections 793, 794, 798, of title 18, United States
Code; section 4(b) of the Internal Security Act of 1950, title
50, United States Code, section 783(b); section 16 of the
Trading with the Enemy Act, title 50, United States Code
appendix, section 16; section 38 of the Arms Export Control
Act, title 22, United States Code, section 2778; any
regulation, license, or order issued under any of the above
statutes; or section 371 or 1001 of title 18, United States
Code, if the conviction arises out of an activity subject to 1
or more of the statutes enumerated above. The Secretary may
also revoke any export license under this Act in which such
person had an interest at the time of the conviction.
(2) The Secretary may exercise the authority under
paragraph (1) with respect to any person related, through
affiliation, ownership, control, or position of responsibility,
to any person convicted of any violation of a law set forth in
paragraph (1), upon a showing of such relationship with the
convicted person, after providing notice and opportunity for
hearing.
(i) Statute of Limitations.--Any case in which a civil penalty or
other administrative sanction (other than a temporary denial order) is
sought under section 9(c) of this Act must be instituted within 5 years
of the date from the alleged violation, except that, in any case in
which a criminal indictment alleging a violation of this Act is
returned within the time limits prescribed by law for the institution
of such action, the statute of limitations for bringing a proceeding to
impose a civil penalty or other administrative sanction under this Act
shall, upon the return of the criminal indictment, be tolled against
all persons named as a defendant. The tolling of the statute of
limitations shall continue for a period of not more than 6 months from
the date a conviction is entered or the indictment is dismissed.
(j) Imposition of Temporary Denial Orders.--
(1) 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 practices which constitutes or would constitute a
violation of the Act, or any regulation, order, or license
issued under the Act, or in any case in which a criminal
indictment has been returned against a person alleging a
violation of the Act or any of the statutes listed in section
9(h) of the Act, the Secretary may, without a hearing, issue an
offer temporarily denying that person's United States export
privileges (hereinafter in this subsection referred to as a
``temporary denial order''). A temporary denial order may be
effective for no longer than 180 days, but may be renewed by
the Secretary, following notice and an opportunity for a
hearing, for additional 180-day periods.
(2) 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 there is reasonable cause to believe that the person
subject to the order is engaged in or is about to engage in any
act or practice which constitutes or would constitute a
violation of the Act, or any regulation, order, or license
issued under the Act, or if it is shown that a criminal
indictment has been returned against the person subject to the
order alleging a violation of the Act or any of the statutes
listed in section 9(h) of the Act. The decision of the
administrative law judge shall be final unless, within 10
working days from the date of the administrative law judge's
decision, an appeal is filed with the Secretary. On appeal, the
Secretary shall either affirm, modify, reverse, or vacate the
decision of the administrative law judge by written order
within 10 working days after receiving the appeal. The written
order of the Secretary shall be final and is not subject to
judicial review except as provided in paragraph (3). The
materials submitted to the administrative law judge and the
Secretary shall constitute the administrative record for
purposes of review by the court.
(3) An order of the Secretary affirming, in whole or in
part, the issuance or renewal of a temporary denial order may,
within 15 days after the order is issued, be appealed by a
person subject to the order to the United States Court of
Appeals for the District of Columbia Circuit, which shall have
jurisdiction of the appeal. The court may review only those
issues necessary to determine whether the issuance of the
temporary denial order was based on reasonable cause to believe
that the person subject to the order was engaged in or was
about to engage in any act or practice which constitutes or
would constitute a violation of the Act, or any regulation,
order or license issued under the Act, or if a criminal
indictment has been returned against the person subject to the
order alleging a violation of the Act or any of the statutes
listed in section 9(h) of the Act. 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.
(k) Violations Defined by Regulation.--Nothing in this section
shall limit the power of the Secretary to define by regulation
violations under this Act.
(l) Other Authorities.--Nothing in subsection (c), (e), (f), (g),
or (i) limits--
(1) the availability of other administrative or judicial
remedies with respect to violations of this Act, or any
regulation, order, or license issued under this Act;
(2) the authority to compromise and settle administrative
proceedings brought with respect to violations of this Act, or
any regulation, order, or license issued under this Act; or
(3) the authority to compromise, remit, or mitigate
seizures and forfeitures pursuant to section 1(b) of title VI
of the Act of June 15, 1917, title 22, United States Code,
section 401(b).
SEC. 10. ENFORCEMENT.
(a) General Authority and Designation.--
(1) The Secretary, in consultation with the Secretary of
Treasury and the heads of other appropriate departments and
agencies, shall be responsible for providing policy guidance on
the enforcement of this Act.
(2) To the extent necessary or appropriate to the
enforcement of this Act or to the imposition of any penalty,
forfeiture, or liability arising under the Export
Administration Act of 1979, as amended, officers or employees
of the Department of Commerce designated by the Secretary and
officers and employees of the United States Customs Service
designated by the Commissioner may exercise the enforcement
authorities described in paragraph (3). In carrying out these
enforcement authorities--
(A) the Commissioner of Customs, and employees of
the United States Customs Service designated by the
Commissioner, may make investigations within or outside
the United States and at those ports of entry or exit
from the United States where officers of the United
States Customs Service are authorized by law to carry
out such enforcement responsibilities. Subject to
paragraph (3), the United States Customs Service is
authorized in the enforcement of this Act, to search,
detain (after search), and seize goods or technology at
those ports of entry or exit from the United States
where officers of the Customs Service are authorized by
law to conduct such searches, detentions, and seizures,
and at those places outside the United States where the
Customs Service, pursuant to agreements or other
arrangements with other countries, is authorized to
perform enforcement activities;
(B) the Secretary, and officers and employees of
the Department of Commerce designated by the Secretary,
may make investigations within the United States, and
shall conduct, outside the United States, pre-license
and post-shipment verifications of items licensed for
export and investigations in the enforcement of section
7 of this Act. The Secretary, and officers and
employees of the Department of Commerce designated by
the Secretary, are authorized to search, detain (after
search), and seize items at those places within the
United States other than those ports and borders
specified in paragraph (2)(A) above. The search,
detention (after search), or seizure of items at those
ports and borders specified in paragraph (2)(A) may
only be conducted by officers and employees of the
Department of Commerce with the concurrence of the
Commissioner of Customs or a person designated by the
Commissioner; and
(C) the Secretary and the Commissioner of Customs
may enter into agreements and arrangements for the
enforcement of this Act, including foreign
investigations and information exchange.
(3) Any officer or employee designated in accordance with
paragraph (2) may do the following in carrying out the
enforcement authority under this Act, except that the
authorities enumerated in subparagraphs (F) and (G) below may
be carried out only by officers and employees of the United
States Customs Service designated by the Commissioner:
(A) Make investigations of, obtain information
from, make inspection of any books, records, or
reports, as well as any writings required to be kept by
the Secretary, premises, or property of, and take the
sworn testimony of, any person.
(B) 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, after notice to any such
person and hearing, shall have jurisdiction to issue an
order requiring such person to appear and give
testimony or to appear and produce books, records, and
other writings, or both, and any failure to obey such
order of the court may be punished by such court as a
contempt thereof.
(C) Execute any warrant or other process issued by
a court or officer of competent jurisdiction with
respect to the enforcement of the provisions of this
Act.
(D) 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.
(E) Carry firearms.
(F) 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.
(G) Detain and search any package or container in
which the officer or employee has reasonable cause to
suspect there is any item that has been, is being, or
is about to be exported from or transited through the
United States in violation of this Act.
(H) 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.
(I) The authorities conferred by this section are
in addition to any authorities conferred under other
laws.
(b) Forfeiture.--All goods or tangible items lawfully seized under
subsection (a) of this section by designated officers or employees
shall be forfeited to the United States. Those provisions of law
relating to--
(1) the seizure, summary and judicial forfeiture, and
condemnation of property for violations of the customs laws;
(2) the disposition of such property or the proceeds from
the sale thereof;
(3) the remission or mitigation of such forfeitures; and
(4) the compromise of claims;
shall apply to seizures and forfeitures incurred, or alleged to have
been incurred, under the provisions of this subsection, insofar as
applicable and not inconsistent with this Act, except that such duties
as are imposed upon the customs officer or any other person with
respect to the seizure and forfeiture of property under the customs
laws may be performed with respect to seizures and forfeitures of
property under this subparagraph by the Secretary or such officers or
employees of the Department of Commerce as may be authorized or
designated for that purpose by the Secretary, or, upon the request of
the Secretary, by any other agency that has authority to manage and
dispose of seized property.
(c) Undercover Investigative Operations.--
(1) With respect to any undercover investigative operation
conducted by the Office of Export Enforcement of the Department
of Commerce (hereinafter in this subsection referred to as
``OEE'') necessary for the detection and prosecution of
violations of this Act--
(A) funds made available for export enforcement
under this Act may be used to purchase property,
buildings, and other facilities, and to lease 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
``miscellaneous'' of the Act of March 3, 1877, title
40, United States Code, section 34, sections 3732(a)
and 3741 of the Revised Statutes of the United States,
title 41, United States Code, sections 11(a) and 22,
and subsections (a) and (c) of section 304, and section
305, of the Federal Property and Administrative
Services act of 1949 and title 41, United States Code,
sections 254 (a) and (c) and 255;
(B) funds made available for export enforcement
under this Act may be used to establish or to acquire
proprietary corporations or business entities as part
of an OEE undercover operation, and to operate such
corporations or business entities on a commercial
basis, without regard to section 9102 of title 31,
United States Code;
(C) funds made available for export enforcement
under this Act and the proceeds from OEE undercover
operations may be deposited in banks or other financial
institutions without regard to the provisions of
section 648 of title 18, United States Code, and
section 3302 of title 31, United States Code; and
(D) the proceeds from OEE undercover operations may
be used to offset necessary and reasonable expenses
incurred in such operations without regard to the
provisions of section 3302 of title 31, United States
Code; if the Director of OEE (or an officer or employee
designated by the Director) certifies, in writing, that
any action authorized by clause (A), (B), (C), or (D)
is necessary for the conduct of the undercover
operation.
(2) If a corporation or business entity established or
acquired as part of an OEE undercover operation with a net
value of more than $50,000 is to be liquidated, sold, or
otherwise disposed of, OEE shall report the circumstances to
the Secretary and the Comptroller General, as much in advance
of such disposition as the Director of OEE or his or her
designee determines is practicable. The proceeds of the
liquidation, sale, or other disposition, after obligations
incurred by the corporation or business enterprise are met,
shall be deposited in the Treasury of the United States as
miscellaneous receipts.
(3) As soon as the proceeds from an undercover
investigative operation with respect to which an action is
authorized and carried out under this paragraph are no longer
necessary for the conduct of such operation, such proceeds or
the balance of such proceeds remaining at the time shall be
deposited into the Treasury of the United States as
miscellaneous receipts.
(4) Audit and report.--
(A) The Director of OEE shall conduct a detailed
financial audit of each undercover investigative
operation which is closed and shall submit the results
of the audit in writing to the Secretary. Not later
than 180 days after an OEE undercover operation is
closed, the Secretary shall submit to the Congress a
report on the results of the audit.
(B) The Secretary shall submit a report annually to
the Congress, which report may be included in the
annual report under section 13, specifying the
following information:
(i) The number of OEE undercover
investigative operations pending as of the end
of the period for which such report is
submitted.
(ii) The number of OEE undercover
investigative operations commenced in the 1-
year period preceding the period for which such
report is submitted.
(iii) The number of OEE undercover
investigative operations closed in the 1-year
period preceding the period for which such
report is submitted and, with respect to each
such closed undercover operation, the results
obtained and any civil claims made with respect
thereto.
(5) For purposes of subparagraph (4)--
(A) the term ``closed'' refers to the earliest
point in time at which all criminal proceedings (other
than appeals) are concluded, or covert activities are
concluded, whichever occurs later; and
(B) the terms ``undercover investigative
operation'' and ``undercover operation'' mean any
undercover investigative operation conducted by OEE--
(i) in which the gross receipts (excluding
interest earned) exceed $25,000, or
expenditures (other than expenditures for
salaries of employees) exceed $75,000; and
(ii) which is exempt from section 3302 or
9102 of title 31, United States Code, except
that clauses (i) and (ii) shall not apply with
respect to the report to the Congress required
by paragraph (B) of subparagraph (4); and
(iii) the term ``employees'' means
employees, as defined in section 2105 of title
5, United States Code, of the Department of
Commerce.
(d) 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.
SEC. 11. AUTHORITY AND PROCEDURES.
(a) Under Secretary of Commerce.--The President shall appoint, by
and with the advice and consent of the Senate, an Under Secretary of
Commerce for Export Administration who shall carry out all functions of
the Secretary under this Act, under other statutes that relate to
national security, and under such other statutes as the Secretary may
delegate. The President shall appoint, by and with the advice and
consent of the Senate, two Assistant Secretaries of Commerce to assist
the Under Secretary in carrying out such functions.
(b) Regulations.--The Secretary may issue such regulations as are
necessary to carry out the provisions of this Act, and amend or revise
them as necessary. Such regulations may apply to financing,
transporting, or other servicing of exports subject to this Act and the
participation therein by any person. The Secretary shall consult with
the appropriate technical advisory committees authorized under this Act
in formulating or amending regulations issued under this Act. Any
regulations to carry out the provisions of section 5 may be issued only
after the regulations are submitted for review to such departments or
agencies as the Secretary considers appropriate. The requirement for
prior agency review does not confer the right of concurrence or
approval by any official, department, or agency to which such
regulations are submitted.
(c) Confidentiality of Information.--
(1) Exemptions from disclosure.--
(A) Except as otherwise provided by the third
sentence of section 7(b)(2) of this Act, information
obtained under the Export Administration Act of 1979
and its predecessor statutes on or before June 30,
1980, which is deemed confidential, including Shipper's
Export Declarations, or with reference to which a
request for confidential treatment is made by the
person furnishing such information, shall not be
subject to disclosure under section 552 of title 5,
United States Code, and such information shall not be
published or disclosed unless the Secretary determines
that the withholding thereof is contrary to the
national interest.
(B) Except as otherwise provided by the third
sentence of section 7(b)(2) of this Act, 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 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, including
the export license or other export authorization
itself, classification requests, information obtained
during the course of a foreign availability assessment,
information or evidence obtained in the course of any
investigation, and information obtained or furnished in
connection with multilateral agreements, treaties, or
obligations 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) shall not be subject to disclosure under section
552 of title 5, United States Code, and such
information shall not be published or disclosed unless
the Secretary determines that the withholding thereof
is contrary to the national interest.
(2) Information to congress and gao.--
(A) In general.--Nothing in this Act shall be
construed as authorizing the withholding of information
from the Congress or from the General Accounting
Office.
(B) Availability to the congress.--
(i) In general.--All information obtained
at any time under this Act or previous Acts
regarding the control of exports, including any
report or license application required under
this Act, shall upon request be made available
to the Committee on Foreign Affairs and the
Subcommittee on International Economic Policy
and Trade of the House of Representatives and
the Committee on Banking, Housing, and Urban
Affairs and the Subcommittee on International
Finance and Monetary Policy of the Senate. Each
of the above designated committees and
subcommittees may provide other members of
Congress information obtained under this
authority provided that such information may
not be further disclosed except upon a finding
made under the following subparagraph.
(ii) Prohibition on further disclosure.--No
such committee or subcommittee, or member
thereof, and no other committee, subcommittee,
or member of Congress shall disclose any
information obtained under this Act or previous
Acts regarding the control of exports which is
submitted pursuant to this subsection unless
one of the above-described full committees
determines that the withholding of that
information is contrary to the national
interest.
(C) Availability to the gao.--
(i) In general.--Notwithstanding paragraph
(1), information referred to in subparagraph
(B) shall, consistent with the protection of
intelligence, counterintelligence, and law
enforcement sources, methods, and activities,
as determined by the agency that originally
obtained the information, and consistent with
the provisions of section 313 of the Budget and
Accounting Act of 1921, be made available only
by the agency, upon request, to the Comptroller
General of the United States or to any officer
or employee of the General Accounting Office
authorized by the Comptroller General to have
access to such information.
(ii) Prohibition on further disclosures.--
No officer or employee of the General
Accounting Office shall disclose, except to the
Congress in accordance with this paragraph, any
such information which is submitted on a
confidential basis and from which any
individual can be identified.
(3) Commerce/customs information exchange.--Notwithstanding
the provisions of section 11(c)(1), the Secretary and the
Commissioner of Customs shall exchange any licensing and
enforcement information with each other which is necessary to
facilitate enforcement efforts and effective license decisions.
(4) Penalties for disclosure of confidential information.--
Any officer or employee of the Untied States, or any department
or agency thereof, who publishes, divulges, discloses, or makes
known in any manner or to any extent not authorized by law any
information coming to him in the course of his or her
employment or official duties or by reason of any examination
or investigation made by, report or record made to or filed
with, such department or agency, or officer or employee
thereof, which information is exempt from disclosure under this
subsection, shall be fined not more than $1,000, or imprisoned
not more than 1 year, or both, and may be removed from office
or employment and shall be subject to an administrative fine of
not more than $1,000 to be enforced under the authorities and
procedures of section 10 of this Act.
(d) Public Participation.--It is the intent of the Congress that,
to the extent practicable, all regulations imposing controls on exports
under this Act be issued in proposed form with meaningful opportunity
for public comment before taking effect. In cases where a regulation
imposing controls under this Act is issued with immediate effect, it is
the intent of the Congress that meaningful opportunity for public
comment also be provided and that the regulation be reissued in final
form after public comments have been fully considered.
(e) Control List Development and Review.--
(1) In general.--The Secretary shall establish and maintain
a Control List comprising all items requiring a validated
license for export to designated countries under this Act. The
Control List and other implementing regulations shall clearly
identify the specific items controlled to each country. The
Secretary shall establish validated license requirements on the
Control List.
(2) Development and review of the control list.--The
Secretary shall consult with appropriate departments and
agencies regarding the addition, deletion, or maintenance of a
license requirement for a given item. The Secretary of State,
in consultation with appropriate departments and agencies,
shall be responsible for conducting negotiations and developing
negotiating positions with other countries regarding
multilateral arrangements for restricting the export of items
to carry out the policies of this Act. All appropriate
departments and agencies shall consult to develop initial
technical parameters and item definitions in connection with
the development of proposals within the United States
Government to be made to multilateral regimes in consultation
with the Technical Advisory Committees as provided in paragraph
(3) below.
For items controlled by a multilateral regime, the
Secretary shall conduct periodic reviews scheduled sufficiently
in advance of regime deliberations to permit the United States
to present appropriate proposals after consultation with United
States industry and the technical advisory committees. The
Secretary shall seek the advice of United States industry and
appropriate technical advisory committees as to the control of
items subject to this Act. This review shall serve as a basis
for United States proposals for revision of items subject to
multilateral regimes. The Secretary of State shall seek to
ensure that each multilateral regime in which the United States
is a member shall review each item on its list of controlled
items at least once every 2 years. In any case when such a
multilateral regime fails to review an entry on its list of
controlled items within 2 years of the prior review, the
Secretary of State shall propose a review by the relevant
multilateral regime of such an entry. Regardless of the
frequency of list reviews by a given regime, the Secretary
shall review each item controlled in cooperation with a
multilateral regime at least once every 2 years.
(3) Technical advisory committees and the public.--The
appropriate technical advisory committee appointed under
section 4(g) shall be consulted by the Secretary with respect
to changes in the Control List established pursuant to this
subsection, and such technical advisory committee may submit
recommendations to the Secretary with respect to such changes.
The Secretary shall consider the recommendations of the
technical advisory committee and shall inform the committee of
the disposition of its recommendations. The Secretary shall
also seek comments and recommendations from the public in
connection with changes in the Control List established
pursuant to this subsection. To the maximum extent practicable
and consistent with the conduct of international negotiations,
in every possible instance, such comments and recommendations
shall be taken into consideration in the development of United
States Government proposals for all list revisions and
positions to be taken in multilateral regimes.
(f) Authority for Seminar and Publications Fund.--The Secretary is
authorized to cooperate with public agencies, other governments,
international organizations, private individuals, private associations,
and other groups in connection with seminars, publications, and related
activities to carry out export activities, including educating the
public or government officials in the application of this Act and the
regulations issued under this Act. The Secretary is further authorized
to accept contributions of funds, property, or services in connection
with such activities to recover the cost of such programs and
activities over time. Contributions shall include payments for
materials or services provided as part of these activities. The
contributions collected may be retained for use in covering the costs
of these activities, and for supporting all outreach functions of the
Department in connection with this Act and other export control
programs of the United States and other governments.
(g) Support of Other Countries' Export Control Program.--The
Secretary may participate in the education and training of officials of
other countries on the principles and procedures for the implementation
of effective export controls.
(h) Applicability of Administrative Procedures Act.--
(1) Exemption.--Except as provided in subsection (d) of
section 9, 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.
(2) Judicial review.--Except as provided by subsections
(d), (g), and (j) of section 9, a final agency action under
this Act may be reviewed by appeal to the United States Court
of Appeals for the District of Columbia Circuit, to the extent
provided in this paragraph. The court's review in any such
appeal shall be limited to determining whether--
(A) a regulation--
(i) fails to take an action compelled by
this Act;
(ii) takes an action prohibited by this
Act; or
(iii) otherwise violates this Act;
(B) an agency action violates this Act;
(C) an agency action violates an agency regulation
establishing time requirements or other procedural
requirements of a non-discretionary nature;
(D) the issuance of regulations compelled by this
Act complies with time restrictions imposed by this
Act;
(E) license decisions are made and appeals thereof
are concluded in compliance with time restrictions
imposed by this Act;
(F) classifications and advisory opinions are
issued in compliance with time restrictions imposed by
this Act;
(G) unfair impact determinations are in compliance
with time restrictions imposed by this Act; or
(H) the United States has complied with the
requirements of section 5(k) after an unfair impact
determination has been rendered.
(i) Incorporated Commodities, Technology, and Software.--
(1) Commodities containing controlled parts and
components.--Export licenses may not be required under this Act
or any other provision of law for a commodity solely because
the commodity contains parts or components subject to export
control under this Act if such parts or components--
(A) are essential to the functioning of the good;
(B) are customarily included in sales of the item
in countries other than target countries; and
(C) comprise 25 percent or less of the total value
of the good, unless the good itself, if exported, would
by virtue of the functional characteristics of the good
as a whole make a significant contribution to the
military or proliferation potential of a target country
or end user which would prove detrimental to the
national security of the United States.
(2) Reexports of foreign-made items incorporating united
states items.--Except for countries embargoed under this Act,
the International Emergency Economic Powers Act or the Trading
with the Enemy Act, and except for countries named as
terrorist-supporting countries under section 5(j)(4), no
authority or permission may be required under this Act to--
(A) reexport a foreign-made commodity incorporating
United States origin commodities valued at 25 percent
or less of the total value of the foreign-made
commodity;
(B) reexport foreign-made software incorporating
United States origin software valued at 25 percent or
less of the total value of the foreign-made software;
or
(C) reexport foreign technology commingled with or
drawn from United States origin technology valued at 25
percent or less of the total value of the foreign
technology.
For countries embargoed under this Act, the International
Emergency Economic Powers Act or the Trading with the Enemy
Act, and except for countries named as terrorist-supporting
countries under section 5(j)(4), no authority or permission may
be required under this Act to--
(D) reexport a foreign-made commodity incorporating
United States origin commodities valued at 10 percent
or less of the total value of the foreign-made
commodity;
(E) reexport foreign-made software incorporating
United States origin software valued at 10 percent or
less of the total value of the foreign-made software;
or
(F) reexport foreign technology commingled with or
drawn from United States origin technology valued at 10
percent or less of the total value of the foreign
technology.
For purposes of this subsection, technology and source code
used to design or produce foreign-made commodities or software
are not incorporated into such foreign-made commodities or
software. Notwithstanding the above provisions, the Secretary
may require firms to report to the Department of Commerce their
proposed calculations and underlying data sufficient for the
Department of Commerce to evaluate the adequacy of those
calculations and data related to commodities, technology, and
software before a reexporter may rely upon this exclusion from
controls.
(j) Exceptions for Medical and Humanitarian Purposes.--This Act
does not authorize controls on--
(1) medical instruments and equipment subject to the
provisions of subsection (j)(1) of this section;
(2) medicine or medical supplies; or
(3) donations of items that are intended to meet basic
human needs including food, educational materials, seeds, hand
tools, water resources equipment, clothing and shelter
materials, and basic household supplies.
(k) Sanctity of Existing Contracts and Licenses.--
(1) In general.--Under a unilateral control imposed under
section 5 of this Act, the President may not prohibit the
export or reexport of items--
(A) in performance of a contract, agreement, or
other contractual commitment entered into before the
effective date of any export controls mandated by this
law, or the date on which the President reports to the
Congress the President's intention to impose controls
on the export or reexport of such items; or
(B) under a validated license issued under this Act
before the effective date of any export controls
mandated by this law, or the date on which the
President reports to the Congress the President's
intention to impose controls on the export or reexport
of such items.
(2) Exception.--The prohibition in paragraph (1) shall not
apply if the President determines and certifies to the Congress
that--
(A) a breach of the peace poses a serious and
direct threat to the strategic interest of the United
States;
(B) the prohibition or curtailment of each such
contract, agreement, commitment, license, or
authorization to be controlled will be directly
instrumental in remedying the situation posing the
direct threat; and
(C) the emergency controls will continue only so
long as the direct threat persists.
(3) The determination authority provided to the President
in this subparagraph (2) may not be delegated.
(l) Fact-Finding Authority.--
(1) To the extent necessary or appropriate to the
administration of this Act or any multilateral regime in which
the United States participates pursuant to this Act, the
Secretary (and officers or employees of the Department of
Commerce designated by the Secretary), the Commissioner of
Customs, or the head of any other department or agency
designated by the Secretary may exercise the authorities
described in paragraph (2).
(2) Any officer or employee designated by the Secretary may
do the following in carrying out the authority of this Act:
(A) Make investigations of, obtain information
from, require reports or the keeping of such records
by, make inspection of the books, records, and other
writings, premises, or property of, and take the sworn
testimony of, any person.
(B) 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, after notice to any such
person and hearing, shall have jurisdiction to issue an
order requiring such person to appear and give
testimony or to appear and produce books, records, and
other writings, or both, and any failure to obey such
order of the court may be punished by such court as a
contempt thereof.
(m) Military Critical Technologies List Development, Review and
Use.--
(1) In developing the Military Critical Technologies List
(MCTL), established pursuant to subsection 4(c) of this Act,
primary emphasis shall be given to--
(A) development and production technology;
(B) test, inspection, and production equipment;
(C) advanced materials, chemicals, and biological
agents;
(D) unique software; and
(E) systems, subsystems, assemblies and components.
(2) The list referred to in paragraph (1) shall be
sufficiently specific to guide the determinations of any
official exercising export licensing responsibilities under
this Act. For purposes of completeness and cross-reference, the
MCTL shall include both dual-use items controlled by this Act
and other militarily critical items that may be controlled
under other authorities, including the Arms Export Control Act
(22 U.S.C. 2770 et seq.)
(3) Consistent with the policies of section 3 and the
criteria of section 5, the Secretary and the Secretary of
Defense shall propose integration of items on the list of
militarily critical technologies into the Control List in
accordance with the requirements of paragraph (1) of this
subsection. Any disagreement between the Secretary and the
Secretary of Defense regarding the integration of an item on
the list of militarily critical technologies into the Control
List shall be resolved by the President.
(4) The Secretary of Defense shall establish a procedure
for reviewing the MCTL on an ongoing basis for the purpose of
removing from the MCTL any items that are no longer militarily
critical. The Secretary of Defense may add to the MCTL any item
that the Secretary of Defense determines is militarily
critical, consistent with the provisions of paragraph (1) of
this subsection. If the Secretary and the Secretary of Defense
disagree as to whether any change in the MCTL by the addition
or removal of an item should also be made in the Control List,
the President shall resolve the disagreement.
(5) The establishment of adequate export controls for
militarily critical technology, equipment, and materials shall
be accompanied by suitable reductions in the controls on the
products of that technology, equipment, and materials.
SEC. 12A. SANCTIONS FOR PROLIFERATION ACTIVITY AND THE USE OF CHEMICAL
AND BIOLOGICAL WEAPONS AND MISSILES.
(a) Determinations.--
(1) Determination of activity supporting the proliferation
of chemical and biological weapons and missiles.--The President
shall determine whether any foreign person has, on or after the
date of the enactment of this section, knowingly or with reason
to know contributed materially to the efforts of any
government, group, entity, or project to use, design, develop,
produce, stockpile, or otherwise acquire chemical or biological
weapons or missiles--
(A) through the export or transfer of--
(i) any item on the MTCR Annex whether or
not of United States-origin; or
(ii) any chemicals, biological agents, or
equipment which may contribute to a chemical or
biological weapons program such as those listed
by the Australia Group, whether or not of
United States-origin;
(B) by participating in any financial transaction
related to the activity described in paragraphs (1)(A)
or (1)(B); or
(C) by facilitating the activity described in
paragraphs (1)(A) or (1)(B);
(D) This subsection does not apply--
(i) under (a)(1)(A)(i) to an export or
transfer that is authorized by the government
of a country that is an adherent to the MTCR or
is to a country that is an adherent to the
MTCR; or
(ii) under (a)(1)(A)(ii) for an export or
transfer that is to a country that is both
authorized by a country that is an adherent to
the Australia Group or a signatory to the
Chemical Weapons Convention and is to a country
that is an adherent to the Australia Group or a
signatory to the Chemical Weapons Convention.
(2) Determination of use of chemical or biological
weapons.--Whenever persuasive information becomes available to
the executive branch indicating the substantial possibility
that, on or after the date of enactment of this Act, the
government of a foreign country has made substantial
preparation to use chemical or biological weapons, the
President shall, within 60 days after the receipt of such
information by the executive branch, determine whether that
government, on or after such date of enactment, has used
chemical or biological weapons in violation of international
law or has used lethal chemical or biological weapons against
its own nationals.
(b) Persons Against Which Sanctions Are To Be Imposed.--In the
event of an affirmative determination under subsection (a)(1)(A)(i) or
(a)(1)(A)(ii), the President shall impose sanctions described under
subsection (c) on the foreign person that engaged in, facilitated, or
solicited the conduct that is the subject of the determination, on
other persons as the President determines should be subject to
sanctions because they are related to that person, and on any successor
of a sanctioned person.
(c) Sanctions.--
(1) Mandatory sanctions.--The following sanctions shall be
imposed for a minimum of 2 years in the event the President
makes a determination under subsections (a)(1)(A)(i) or
(a)(1)(A)(ii):
(A) If the determination is for activity related to
missile proliferation, validated licenses for items on
the MTCR annex shall be denied under this Act and the
Arms Export Control Act and imports of such items from
such entities shall be prohibited.
(B) If the determination is for activity related to
chemical or biological weapons proliferation, validated
licenses for items listed by the Australia Group shall
be denied under this Act and the Arms Export Control
Act and imports of such items from such entities shall
be prohibited.
(C) The United States Government shall not procure,
or enter into any contract for the procurement of, any
services, commodities, software, and technology, or
other products from or produced by any entity described
in subsection (a)(2).
(2) Discretionary sanctions.--In addition to the sanctions
described in paragraph (1), the President may also take any of
the actions listed in paragraphs (3) and (5), if the President
determines that such additional measures would further the
objectives of this section. Such additional sanctions shall be
proportionate to the harm the sanctioned behavior has caused or
will cause the national security or nonproliferation interests
of the United States.
(3) Mandatory sanctions for use of chemical or biological
weapons.--The following sanctions shall be imposed in the event
the President makes a determination under subsection (a)(2):
(A) Foreign assistance.--The United States
Government shall terminate assistance to that country
under the Foreign Assistance Act of 1961, except for
urgent humanitarian assistance and food or other
agricultural commodities or products.
(B) Arms sales.--The United States Government shall
terminate--
(i) sales to that country under the Arms
Export Control Act of any defense articles,
defense services, or design and construction
services; and
(ii) licenses for the export to that
country of any item on the United States
Munitions List.
(C) Arms sales financing.--The United States
Government shall terminate all foreign military
financing for that country under the Arms Export
Control Act.
(D) Denial of united states government credit or
other financial assistance.--The United States
Government shall deny to that country any credit,
credit guarantees, or other financial assistance by any
department, agency, or instrumentality of the United
States Government, including the Export-Import Bank of
the United States.
(E) Exports of national security-sensitive items.--
The authorities of this Act shall be used to prohibit
the export to that country of any items controlled for
non-proliferation, regional stability, or national
security reasons.
(4) Additional sanctions if certain conditions not met.--
Unless, within 3 months after making a determination pursuant
to subsection (a)(2) with respect to a foreign government, the
President determines and certifies, in writing, to the Congress
that--
(A) the government is no longer using chemicals or
biological weapons in violation of international law or
using lethal chemicals or biological weapons against
its own nationals;
(B) the government has provided reliable assurances
that it will not, in the future, engage in any such
activities; and
(C) the government is willing to allow on-site
inspections by United Nations observers or other
internationally-recognized, impartial observers, or
other reliable means exist, to ensure that government
is not using chemical or biological weapons in
violation of international law and is not using lethal
chemical or biological weapons against its own
nationals, then the President, after consultation with
the Congress, shall impose on that country the
sanctions set forth in at least 3 of subparagraphs (A)
through (F) of paragraph (5).
(5) Additional sanctions for use of chemical or biological
weapons.--The sanctions referred to in paragraph (4) are the
following:
(A) Multilateral development bank assistance.--The
United States Government shall oppose, in accordance
with section 701 of the International Financial
Institutions Act (22 U.S.C. 262d), the extension of any
loan or financial or technical assistance to that
country by international financial institutions.
(B) Bank loans.--The United States Government shall
prohibit any United States bank from making any loan or
providing any credit to the government of that country,
except for loans or credits for the purpose of
purchasing food or other agricultural commodities or
products.
(C) Further export restrictions.--The authorities
of this Act may be used to prohibit exports to the
country of all other items (excluding food and other
agricultural commodities and products).
(D) Import restrictions.--Restriction shall be
imposed on the importation into the United States of
articles (which may include petroleum or any petroleum
product) that are the growth, product, or manufacture
of that country.
(E) Diplomatic relations.--The President shall use
constitutional authorities to downgrade or suspend
diplomatic relations between the United States and the
government of that country.
(F) Presidential action regarding aviation.--
(i)(I) The President is authorized to
notify the government of a country with respect
to which the President has made a
determination, pursuant to subsection 12(a),
regarding intention to suspend the authority of
foreign air carriers owned or controlled by the
government of that country to engage in foreign
air transportation to or from the United
States.
(II) Within 10 days after the date of
notification of a government under subclause
(I), the Secretary of Transportation shall take
all steps necessary to suspend at the earliest
possible date the authority of any foreign air
carrier owned or controlled, directly or
indirectly, by that government to engage in
foreign air transportation to or from the
United States, notwithstanding any agreement
relating to air services.
(ii)(I) The President may direct the
Secretary of State to terminate any air service
agreement between the United States and a
country with respect to which the President has
made a determination pursuant to subsection
(a), in accordance with the provisions of that
agreement.
(II) Upon termination of an agreement under
this clause, the Secretary of Transportation
shall take such steps as may be necessary to
revoke at the earliest possible date the right
of any foreign air carrier owned, or
controlled, directly or indirectly, by the
government of that country to engage in foreign
air transportation to or from the United
States.
(iii) The Secretary of Transportation may
provide for such exceptions from clauses (i)
and (ii) as the Secretary considers necessary
to provide for emergencies in which the safety
of an aircraft or its crew or passengers is
threatened.
(iv) For purposes of this subparagraph, the
terms ``air transportation'', ``air carrier'',
``foreign air carrier'', and ``foreign air
transportation'' have the meanings such terms
have under section 101 of the Federal Aviation
of 1958 (49 U.S.C. App. 1301).
(d) Deferral and Limitation.--
(1) The President may delay the making of a determination
under subsection (a) or the imposition of sanctions in order to
protect--
(A) ongoing criminal investigations; or
(B) sensitive intelligence sources and methods
which are being used to acquire further information on
the proliferation of weapons of mass destruction, their
delivery systems, or advanced conventional weapons.
The President shall exercise this authority only when the
President determines that nonproliferation objectives do not
outweigh the need to delay the imposition of sanctions to avoid
compromising the criminal investigation or intelligence sources
and methods involved. The President shall proceed when the
basis for the delay no longer exists.
(2) The President may delay the imposition of sanctions for
up to 180 days if the United States is engaged in diplomatic
efforts and consultations with the objective of--
(A) curtailing the policies and conduct of the
government or person in the country of weapons activity
determined to have engaged in the sanctioned conduct;
or
(B) obtaining from the government with effective
jurisdiction over the sanctioned person appropriate
sanctions against such person or the initiation of
legal process to impose such sanctions.
If such diplomatic efforts and consultations succeed (i) in
curtailing the conduct of the government or person engaged in
the sanctioned conduct, or (ii) in obtaining enforcement action
in accordance with subparagraph (B), the President shall not be
required to apply or maintain sanctions under this section.
(3) The President should seek multilateral support for
sanctions against activity covered by this section. If
multilateral sanctions are achieved that the President
determines will be more effective than unilateral sanctions in
furthering the national security or nonproliferation objectives
of the United States, the President shall not be required to
exercise the authority in this section in a manner inconsistent
with such multilateral sanctions.
(e) Exceptions.--The President shall not be required to apply or
maintain sanctions under this section--
(1) in the case of procurement of defense articles or
defense services--
(A) under existing contracts or subcontracts,
including the exercise of options for production
quantities to satisfy United States operational
military requirements;
(B) if the President determines that the person 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
(C) if the President determines that such articles
or services are essential to the national security
under defense coproduction agreements;
(2) to the import of--
(A) products or services provided under contracts
entered into before the data on which the President
publishes notice of intention to impose sanctions; or
(B)(i) spare parts;
(ii) component parts, but not finished products,
essential to United States products or production;
(iii) information and technology essential to
United States products or production; or
(iv) routine servicing and maintenance of products,
to the extent that alternative sources are not readily
or reasonably available;
(3) to medical or other humanitarian items; or
(4) to any transaction subject to the reporting
requirements of title V of the National Security Act of 1947;
(5) when the President determines, categorically or on a
case-by-case basis, that the application of sanctions to bar
performance of a contract or agreement entered into before the
date of the imposition of sanctions is not necessary to achieve
the national security or nonproliferation objectives of the
United States and would be contrary to the national interest.
(f) Termination of Sanctions for Using Chemical or Biological
Weapons.--During the minimum 2 years period of the mandatory sanctions
imposed pursuant to a determination under subsection (a)(2), such
sanctions may be removed if the President determines and so certifies
to the Congress that--
(1) the government of that country has provided reliable
assurances that it will not use chemical or biological weapons
in violation of international law and will not use lethal
chemical or biological weapons against its own nationals;
(2) that government is not making preparations to use
chemical or biological weapons in violation of international
law or to use lethal chemical or biological weapons against its
own nationals;
(3) that government is willing to allow on-site inspections
by United Nations observers or other internationally-
recognized, impartial observers to verify that it is not making
preparations to use chemical or biological weapons in violation
of international law or to use lethal chemical or biological
weapons against its own nationals, or other reliable means
exist to verify that it is not making such preparations; and
(4) that government is making restitution to those affected
by any use of chemical or biological weapons in violation of
international law or by any use of lethal chemical or
biological weapons against its own nationals.
(g) Waiver.--
(1) Criterion for waiver.--The President may waive or
partially waive the application of any sanction imposed on any
entity pursuant to this section, if the President determines
and certifies to Congress that such waiver is important to the
national interests of the United States.
(2) Notification of and report to congress.--If the
President decides to exercise the waiver authority provided in
paragraph (1), the President shall so notify the Congress not
less than 20 days before the waiver takes effect. Such
notification shall include a report stating the reasons for
exercise of the waiver authority.
(h) Regulatory Implementation of Sanctions.--For items subject to
the jurisdiction of the Secretary under this Act, sanctions shall be
implemented in regulations issued by the Secretary and shall specify
the scope of products and entities. For items subject to the
jurisdiction of the Secretary of State under the Arms Export Control
Act, sanctions shall be implemented in regulations issued by the
Secretary of State and shall specify the scope of products and
entities.
SEC. 12B. SANCTIONS FOR PROLIFERATION ACTIVITY AND THE USE OF CHEMICAL
AND BIOLOGICAL WEAPONS.
Section 72 of the Arms Export Control Act is amended to read as
follows:
``SEC. 72. SANCTIONS AGAINST CERTAIN FOREIGN PERSONS AND COUNTRIES.
``(a) Determinations.--
``(1) Determination of activity supporting the
proliferation of chemical and biological weapons and
missiles.--The President shall determine whether any foreign
person has, on or after the date of the enactment of this
section, knowingly or with reason to know contributed
materially to the efforts of any government, group, entity, or
project to use, design, develop, produce, stockpile, or
otherwise acquire chemical or biological weapons or missiles--
``(A) through the export or transfer of--
``(i) any item on the MTCR Annex whether or
not of United States-origin; and
``(ii) any chemicals, biological agents, or
equipment which may contribute to a chemical or
biological weapons program such as those listed
by the Australia Group, whether or not of
United States-origin;
``(B) by participating in any financial transaction
related to the activity described in paragraphs (1)(A)
or (1)(B); or
``(C) by facilitating or soliciting the activity
described in paragraphs (1)(A) or (1)(B);
``(D) This subsection does not apply--
``(i) under (a)(1)(A)(i) to an export or
transfer that is authorized by the government
of a country that is an adherent to the MTCR or
is to a country that is an adherent to the
MTCR; or
``(ii) under (a)(1)(A)(ii) for an export or
transfer that is to a country that is both
authorized by a country that is an adherent to
the Australia Group or a signatory to the
Chemical Weapons Convention and is to a country
that is an adherent to the Australia Group or a
signatory to the Chemical Weapons Convention.
``(2) Determination of use of chemical or biological
weapons.--Whenever persuasive information becomes available to
the executive branch indicating the substantial possibility
that, on or after the date of enactment of this Act, the
government of a foreign country has made substantial
preparation to use chemical or biological weapons, the
President shall, within 60 days after the receipt of such
information by the executive branch, determine whether that
government, on or after such date of enactment, has used
chemical or biological weapons in violation of international
law or has used lethal chemical or biological weapons against
its own nationals.
``(b) Persons Against Which Sanctions Are To Be Imposed.--In the
event of an affirmative determination under subsection (a)(1)(A)(i) or
(a)(1)(A)(ii), the President shall impose sanctions described under
subsection (c) on the foreign person that engaged in, facilitated, or
solicited the conduct that is the subject of the determination, on
other persons as the President determines should be subject to
sanctions because they are related to that person, and on any successor
of a sanctioned person.
``(c) Sanctions.--
``(1) Mandatory sanctions.--The following sanctions shall
be imposed for a minimum of 2 years in the event the President
makes a determination under subsections (a)(1)(A)(i) or
(a)(1)(A)(ii):
``(A) If the determination is for activity related
to missile proliferation, validated licenses for items
on the MTCR annex shall be denied under this Act and
the Export Administration Act and imports of such items
for such entities shall be prohibited.
``(B) If the determination is for activity related
to chemical or biological weapons proliferation,
validated licenses for items listed by the Australia
Group shall be denied under this Act and the Export
Administration Act and imports of such items for such
entities shall be prohibited.
``(C) The United States Government shall not
procure, or enter into any contract for the procurement
of, any services, commodities, software, and
technology, or other products from or produced by any
entity described in subsection (a)(2).
``(2) Discretionary sanctions.--In addition to the
sanctions described in paragraph (1), the President may also
take any of the actions listed in paragraphs (3) and (5), if
the President determines that such additional measures would
further the objectives of this section. Such additional
sanctions shall be proportionate to the harm the sanctioned
behavior has caused or will cause the national security or
nonproliferation interests of the United States.
``(3) Mandatory sanctions for use of chemical or biological
weapons.--The following sanctions shall be imposed in the event
the President makes a determination under subsection (a)(2):
``(A) Foreign assistance.--The United States
Government shall terminate assistance to that country
under the Foreign Assistance Act of 1961, except for
urgent humanitarian assistance and food or other
agricultural commodities or products.
``(B) Arms sales.--The United States Government
shall terminate--
``(i) sales to that country under this Act
of any defense articles, defense services, or
design and construction services; and
``(ii) licenses for the export to that
country of any item on the United States
Munitions List.
``(C) Arms sales financing.--The United States
Government shall terminate all foreign military
financing for that country under this Act.
``(D) Denial of united states government credit or
other financial assistance.--The United States
Government shall deny to that country any credit,
credit guarantees, or other financial assistance by any
department, agency, or instrumentality of the United
States Government, including the Export-Import Bank of
the United States.
``(E) Exports of national security-sensitive
items.--The authorities of this Act shall be used to
prohibit the export to that country of any items
controlled for nonproliferation, regional stability, or
national security reasons.
``(4) Additional sanctions if certain conditions not met.--
Unless, within 3 months after making a determination pursuant
to subsection (a)(2) with respect to a foreign government, the
President determines and certifies, in writing, to the Congress
that--
``(A) the government is no longer using chemicals
or biological weapons in violation of international law
or using lethal chemicals or biological weapons against
its own nationals;
``(B) the government has provided reliable
assurances that it will not, in the future, engage in
any such activities; and
``(C) the government is willing to allow on-site
inspections by United Nations observers or other
internationally-recognized, impartial observers, or
other reliable means exist, to ensure that government
is not using chemicals or biological weapons in
violation of international law and is not using lethal
chemical or biological weapons against its own
nationals, then the President, after consultation with
the Congress, shall impose on that country the
sanctions set forth in at least 3 of subparagraphs (A)
through (F) of paragraph (5).
``(5) Additional sanctions for use of chemical or
biological weapons.--The sanctions referred to in paragraph (4)
are the following:
``(A) Multilateral development bank assistance.--
The United States Government shall oppose, in
accordance with section 701 of the International
Financial Institutions Act (22 U.S.C. 262d), the
extension of any loan or financial or technical
assistance to that country by international financial
institutions.
``(B) Bank loans.--The United States Government
shall prohibit any United States bank from making any
loan or providing any credit to the government of that
country, except for loans or credits for the purpose of
purchasing food or other agricultural commodities or
products.
``(C) Further export restrictions.--The authorities
of this Act may be used to prohibit exports to the
country of all other items (excluding food and other
agricultural commodities and products).
``(D) Import restrictions.--Restriction shall be
imposed on the importation into the United States of
articles (which may include petroleum or any petroleum
product) that are the growth, product, or manufacture
of that country.
``(E) Diplomatic relations.--The President shall
use constitutional authorities to downgrade or suspend
diplomatic relations between the United States and the
government of that country.
``(F) Presidential action regarding aviation.--
``(i)(I) The President is authorized to
notify the government of a country with respect
to which the President has made a
determination, pursuant to subsection 12(a),
regarding intention to suspend the authority of
foreign air carriers owned or controlled by the
government of that country to engage in foreign
air transportation to or from the United
States.
``(II) Within 10 days after the date of
notification of a government under subclause
(I), the Secretary of Transportation shall take
all steps necessary to suspend at the earliest
possible date the authority of any foreign air
carrier owned or controlled, directly or
indirectly, by that government to engage in
foreign air transportation to or from the
United States, notwithstanding any agreement
relating to air services.
``(ii)(I) The President may direct the
Secretary of State to terminate any air service
agreement between the United States and a
country with respect to which the President has
made a determination pursuant to subsection
(a), in accordance with the provisions of that
agreement.
``(II) Upon termination of an agreement
under this clause, the Secretary of
Transportation shall take such steps as may be
necessary to revoke at the earliest possible
date the right of any foreign air carrier
owned, or controlled, directly or indirectly,
by the government of that country to engage in
foreign air transportation to or from the
United States.
``(iii) The Secretary of Transportation may
provide for such exceptions from clauses (i)
and (ii) as the Secretary considers necessary
to provide for emergencies in which the safety
of an aircraft or its crew or passengers is
threatened.
``(iv) for purposes of this subparagraph,
the terms `air transportation', `air carrier',
`foreign air carrier', and `foreign air
transportation' have the meanings such terms
have under section 101 of the Federal Aviation
Act of 1958 (49 U.S.C. App. 1301).
``(d) Deferral and Limitation.--
``(1) The President may delay the making of a determination
under subsection (a) or the imposition of sanctions in order to
protect--
``(A) ongoing criminal investigations; or
``(B) sensitive intelligence sources and methods
which are being used to acquire further information on
the proliferation of weapons of mass destruction, their
delivery systems, or advanced conventional weapons.
The President shall exercise this authority only when the
President determines that nonproliferation objectives do not
outweigh the need to delay the imposition of sanctions to avoid
compromising the criminal investigation or intelligence sources
and methods involved. The President shall proceed when the
basis for the delay no longer exists.
``(2) The President may delay the imposition of sanctions
for up to 180 days if the United States is engaged in
diplomatic efforts and consultations with the objective of--
``(A) curtailing the policies and conduct of the
government or person in the country of weapons activity
determined to have engaged in the sanctioned conduct;
or
``(B) obtaining from the government with effective
jurisdiction over the sanctioned person appropriate
sanctions against such person or the initiation of
legal process to impose such sanctions.
If such diplomatic efforts and consultations succeed (i) in
curtailing the conduct of the government or person engaged in
the sanctioned conduct, or (ii) in obtaining enforcement action
in accordance with subparagraph (B), the President shall not be
required to apply or maintain sanctions under this section.
``(3) The President should seek multilateral support for
sanctions against activity covered by this section. If
multilateral sanctions are achieved that the President
determines will be more effective than unilateral sanctions in
furthering the national security or nonproliferation objectives
of the United States, the President shall not be required to
exercise the authority in this section in a manner inconsistent
with such multilateral sanctions.
``(e) Exceptions.--The President shall not be required to apply or
maintain sanctions under this section--
``(1) in the case of procurement of defense articles or
defense services--
``(A) under existing contracts or subcontracts,
including the exercise of options for production
quantities to satisfy United States operational
military requirements;
``(B) if the President determines that the person
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
``(C) if the President determines that such
articles or services are essential to the national
security under defense coproduction agreements;
``(2) to the import of--
``(A) products or services provided under contracts
entered into before the date on which the President
publishes notice of intention to impose sanctions; or
``(B)(i) spare parts;
``(ii) component parts, but not finished products,
essential to United States products or production;
``(iii) information and technology essential to
United States products or production;
``(iv) routine servicing and maintenance of
products, to the extent that alternative sources are
not readily or reasonably available;
``(3) to medical or other humanitarian items;
``(4) to any transaction subject to the reporting
requirements of title V of the National Security Act of 1947;
or
``(5) when the President determines, categorically or on a
case-by-case basis, that the application of sanctions to bar
performance of a contract or agreement entered into before the
date of the imposition of sanctions is not necessary to achieve
the national security or nonproliferation objectives of the
United States and would be contrary to the national interest.
``(f) Termination of Sanctions for Using Chemical or Biological
Weapons.--During the minimum 2 years period of the mandatory sanctions
imposed pursuant to a determination under subsection (a)(2), such
sanctions may be removed if the President determines and so certifies
to the Congress that--
``(1) the government of that country has provided reliable
assurances that it will not use chemical or biological weapons
in violation of international law and will not use lethal
chemical or biological weapons against its own nationals;
``(2) that government is not making preparations to use
chemical or biological weapons in violation of international
law or to use lethal chemical or biological weapons against its
own nationals;
``(3) that government is willing to allow on-site
inspections by United Nations observers or other
internationally-recognized, impartial observers to verify that
it is not making preparations to use chemical or biological
weapons in violation of international law or to use lethal
chemical or biological weapons against its own nationals, or
other reliable means exist to verify that it is not making such
preparations; and
``(4) that government is making restitution to those
affected by any use of chemical or biological weapons in
violation of international law or by any use of lethal chemical
or biological weapons against its own nationals.
``(g) Waiver.--
``(1) Criterion for waiver.--The President may waive or
partially waive the application of any sanction imposed on any
entity pursuant to this section, if the President determines
and certifies to Congress that such waiver is important to the
national interests of the United States.
``(2) Notification of and report to congress.--If the
President decides to exercise the waiver authority provided in
paragraph (1), the President shall so notify the Congress not
less than 20 days before the waiver takes effect. Such
notification shall include a report stating the reasons for
exercise of the waiver authority.
``(h) Regulatory Implementation of Sanctions.--For items subject to
the jurisdiction of the Secretary of Commerce under the Export
Administration Act, sanctions shall be implemented in regulations
issued by the Secretary and shall specify the scope of products and
entities. For items subject to the jurisdiction of the Secretary of
State under this Act, sanctions shall be implemented in regulations
issued by the Secretary of State and shall specify the scope of
products and entities.''.
SEC. 13. ANNUAL REPORT.
(a) Contents.--Not later than March 1 of each year, the Secretary
shall submit to the Congress a report on the administration of this Act
during the preceding calendar year. All agencies shall cooperate fully
with the Secretary in providing information for such report. Such
report shall include detailed information on--
(1) the implementation of the policies set forth in section
3, including delegations of authority by the President as
provided in section 4(e), consultations with the technical
advisory committees established pursuant to section 4(g), and
any changes in the exercise of the authorities contained in
sections 5(a), 6(a), and 7(a);
(2) adjustments to multilateral export controls; activities
involving the license free zones authorized by section 5(f)(4),
and determinations under section 5(1), the criteria used to
make such determinations, the removal of any export controls
under such section, and any evidence demonstrating a need to
maintain export controls notwithstanding foreign availability;
(3) the effectiveness of unilateral export controls imposed
under section 5, and any adjustments thereto; and embargoes
imposed, maintained, or removed in accordance with section 5,
including descriptions of each embargo and the rationale for
imposing, maintaining, or removing such embargoes;
(4) short supply controls and monitoring in accordance with
section 6;
(5) organizational and procedural changes undertaken in
furtherance of the policies set forth in this Act, including
changes to increase the efficiency of the export licensing
process and to fulfill the requirements of section 8, including
an accounting of appeals received, and actions taken pursuant
thereto under section 8(h);
(6) violations under section 9, enforcement activities
under section 10, and any reviews undertaken in furtherance of
the policies of this Act;
(7) the issuance of regulations under the authority of this
Act;
(8) the results, in as much detail as may be included
consistent with multilateral arrangements and the need to
maintain the confidentiality of proprietary information and
classified information, of the reviews of the Commerce Control
List, and any revisions to the Commerce Control List resulting
from such reviews, required by section 11; and
(9) the imposition or removal of sanctions against certain
entities and foreign countries in accordance with section 12.
(b) Report on Certain Export Controls.--To the extent that the
President determines that the policies set forth in section 3 require
the control of the export of items other than those subject to
multilateral controls, or require more stringent controls than the
multilateral regimes, the President shall include in each annual report
the reasons for the need to impose, or to continue to impose, such
controls and the estimated domestic economic impact on the various
industries affected by such controls.
SEC. 14. DEFINITIONS.
As used in this Act:
(1) Affiliates.--The term ``affiliates'' includes both
governmental entities and commercial entities that are
controlled in fact by target countries.
(2) Australia group (``ag'').--The term ``Australia Group''
or ``AG'' means the multilateral arrangement in which the
United States participates that seeks to prevent the
proliferation of chemical and biological weapons.
(3) Biological weapons convention.--The term ``Biological
Weapons Convention'' refers to the ``Convention on the
Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their
Destruction of 1972''.
(4) Chemical weapons convention.--The term ``Chemical
Weapons Convention'' refers to the Convention on the
Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on Their Destruction of 1992.
(5) Commodity.--The term ``commodity'' means any article,
natural or manmade substance, material, supply or manufactured
product, including inspection of test equipment, and excluding
technical data.
(6) Coordinating committee (``cocom'').--The term
``Coordinating Committee'' or ``COCOM'' means the multilateral
organization in which the United States participates that
cooperates in restricting transfers of strategic items to
certain countries.
(7) Export.--The term ``export'' means--
(A) an actual shipment, transfer, or transmission
of items out of the United States;
(B) a transfer to any person of items either within
the United States or outside of the United States or to
an end user, end use, or destination with the knowledge
or intent that the items will be shipped, transferred,
or transmitted outside the United States; or
(C) unless otherwise clear from the context, the
term ``export'' includes the term ``reexport'':
Provided, That the Secretary may further define the term by regulation
to include, among other concepts, that a transfer of items in the
United States to an embassy or affiliate of a country is an export to
the country, that disclosure of technology to a foreign national is a
deemed export to his or her home country, and that transfer of
effective control from one country to another over a satellite above
the earth is an export from one country to another.
(8) Facilitating the activity.--The term ``facilitating the
activity'' includes but is not limited to, acting as a freight
forwarder, shipper, designated export or import agent,
consignee, purchasing agent, marketing agent, manufacturer,
assembler, designer, financier, or end user with respect to the
services or items to be exported, transferred, or provided.
(9) Financial transactions.--The term ``financial
transactions'' means any transactions involving the exchange,
transfer, crediting, debiting, deposit, withdrawal, or payment
of currency, securities, debt, credit, checks, other monetary
instruments, precious metals or minerals, or other items of
value whether physically or by electronic means. The term is
intended to be interpreted broadly to include such transactions
as the opening or drawing down of letters of credit, the
extension of a loan, the receipt of payment, or the use of
credit cards.
(10) Item.--The term ``item'' means any commodity,
technology, or software.
(11) Missile.--The term ``missile'' means any missile
system or component listed in category I of the MTCR Annex, and
any other unmanned delivery system or component of similar
capability, as well as the specially designed production
facilities for these systems.
(12) Missile technology control regime (``mtcr'').--The
term ``Missile Technology Control Regime'' or ``MTCR'' means
the policy statement and Guidelines between the United States,
the United Kingdom, the Federal Republic of Germany, France,
Italy, Canada, and Japan, announced on April 16, 1987, to
restrict sensitive missile-related transfers based on the MTCR
Annex, and any amendments to the Annex or Guidelines.
(A) MTCR adherent.--The term ``MTCR adherent''
means a country that is a member of 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.
(B) MTCR annex.--The term ``MTCR Annex'' means the
Equipment and Technology Annex of the MTCR and any
amendments thereto.
(13) Multilateral control.--The term ``multilateral
control'' means a licensing requirement exercised by the United
States and at least one other nation.
(14) Nuclear suppliers' group (``nsg'').--The term
``Nuclear Suppliers' Group'' or ``NSG'' means the multilateral
arrangement in which the United States participates whose
purpose is to restrict the transfers of items with relevance to
the nuclear fuel cycle and/or nuclear explosive applications.
(15) Person.--The term ``person'' includes--
(A) the single and plural of any individual,
corporation, partnership, business association,
society, trust, organization, or other group created or
organized under the laws of a country; or
(B) any government, governmental body, corporation,
trust, agency, department, division, or group operating
as a business enterprise.
(16) Protocol on biological warfare.--The term ``Protocol
on Biological Warfare'' refers to the Protocol for the
Prohibition of the Use in War of Asphyxiating, Poisonous or
Other Gases, and of Bacteriological Methods of Warfare of 1925.
(17) Regime, multilateral export control regime,
multilateral regime.--The terms ``regime'' and ``multilateral
export control regime'' and ``multilateral regime'' each means
an arrangement of two or more countries to which the United
States is a party or which the United States would seek to
create or join and brought together for the purpose of
curtailing access to controlled items by target countries by
means of cooperative export controls.
(18) Reexport.--The term ``reexport'' means the shipment,
transfer, transhipment, or diversion of items from one foreign
country to another.
(19) Secretary.--The term ``Secretary'' means the Secretary
of Commerce.
(20) Target country.--The term ``target country'' means a
country for which it is the objective under this Act to deny or
attempt to deny access to controlled items or a country from
which the United States distances itself by means of a
unilateral export control adopted under this Act.
(21) Techology.--The term ``technology'' means specific
information required for the ``development'', ``production'',
or ``use'' of a product. The information takes the form of
``technical data'' or ``technical assistance''. Controlled
``technology'' is defined in the General Technology Note and in
the Commerce Control List.
(22) Unilateral control.--The term ``unilateral control''
means a license requirement that is not multilaterally agreed
to by two or more countries.
(23) United states.--The term ``United States'' means the
States of the United States, the District of Columbia, and any
commonwealth, territory, dependency, or possession of the
United States, and includes the Outer Continental Shelf, as
defined in Section 2(a) of the Outer Continental Shelf Lands
Act (43 U.S.C. 1331(a)).
(24) United states person.--The term ``United States
person'' means any United States citizen, resident, national
(other than an individual resident outside the United States
and employed by other than a United States person), or person
within the United States, any domestic concern (including any
permanent domestic establishment of any foreign concern) and
any foreign subsidiary or affiliate (including any permanent
foreign establishment) of any domestic concern which is
controlled in fact by such domestic concern, as determined
under regulations of the President.
(25) Weapons of mass destruction.--The term ``weapons of
mass destruction'' means any chemical or biological weapons or
nuclear explosive devices.
SEC. 15. EFFECTS ON OTHER ACTS.
(a) Commodity Jurisdiction.--
(1) Coordination of controls.--The authority granted under
this Act and under section 38 of the Arms Export Control Act
(22 U.S.C. 2778) shall be exercised by each licensing authority
in such a manner as to achieve effective coordination between
the dual use and munitions licensing systems and share
information regarding the trustworthiness of parties.
(2) Elimination of overlapping controls.--No item may be
included on both the Commerce Control List and the United
States Munitions List after the effective date of this Act.
(3) Commodity jurisdiction dispute resolution.--Under
procedures to be established by the President, disputes
regarding conflicting claims of jurisdiction between the
Commerce Control List and the United States Munitions List
shall be resolved in a timely fashion by the Department of
State, in consultation with other agencies. Consultations shall
be carried out through committees chaired by representatives of
the Department of State at the Assistant Secretary or Under
Secretary level. The procedures of the committees shall allow
the initiation of matters by either the States Department or
other agencies including in response to requests to the
Departments of State and Commerce. Consultation procedures
within the committees shall provide for interagency meetings to
permit the free exchange of views regarding jurisdictional
issues. Disputes that cannot be resolved may be referred to the
President by the Secretary of State, the Secretary of Defense,
or the Secretary of Commerce.
(b) In General.--Except as otherwise provided in this Act, nothing
contained in this Act shall be construed to modify, repeal, supersede,
or otherwise affect the provisions of any other laws authorizing
control over exports of any commodity.
(c) Amendments to the International Emergency Economic Powers
Act.--
(1) The International Emergency Economic Powers Act (50
U.S.C. 1707) is amended by adding after the last section the
following section 208:
``SEC. 208. CONFIDENTIALITY OF INFORMATION.
``(a) Exemptions from Disclosure.--Information obtained under this
Act may be withheld only to the extent permitted by statute, except
that information submitted, obtained or considered in connection with
an application for an export license or other export authorization
under this Act, including the export license or other export
authorization itself, classification requests, information obtained
during the course of a foreign availability assessment, information or
evidence obtained in the course of any investigation, and information
obtained or furnished in connection with multilateral agreements,
treaties, or obligations under this Act shall not be subject to
disclosure under section 552 of title 5, United States Code, and shall
be withheld from public disclosure unless the release of such
information is determined by the Secretary to be in the national
interest.
``(b) Information to Congress and GAO.--
``(1) In general.--Nothing in this Act shall be construed
as authorizing the withholding of information from the Congress
or from the General Accounting Office.
``(2) Availability to the congress.--
``(A) In general.--All information obtained at any
time under this Act regarding the control of exports,
including any report or license application required
under this Act, shall upon request be made available to
the Committee on Foreign Affairs and the Subcommittee
on International Economic Policy and Trade of the House
of Representatives and the Committee on Banking,
Housing, and Urban Affairs and the Subcommittee on
International Finance and Monetary Policy of the
Senate. Each of the above designated committees and
subcommittees may provide other members of Congress
information obtained under this authority provided that
such information may not be further disclosed except
upon a finding made under the following subparagraph.
``(B) Prohibition on further disclosure.--No such
committee or subcommittee, or member thereof, and no
other committee, subcommittee, or member of Congress
shall disclose any information obtained under this Act
or previous Acts regarding the control of exports which
is submitted pursuant to this subsection unless one of
the above described full committees determines that the
withholding of that information is contrary to the
national interest.
``(3) Availability to the gao.--
``(A) In general.--Notwithstanding paragraph (1),
information referred to in subparagraph (B) shall,
consistent with the protection of intelligence,
counterintelligence, and law enforcement sources,
methods, and activities, as determined by the agency
that originally obtained the information, and
consistent with the provisions of section 313 of the
Budget and Accounting Act of 1921, 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 Controller General to have access to such
information.
``(B) Prohibition on further disclosures.--No
officer or employee of the General Accounting Office
shall disclose, except to the Congress in accordance
with this paragraph, any such information which is
submitted on a confidential basis and from which any
individual can be identified.
``(c) Penalties for Disclosure of Confidential Information.--Any
officer or employee of the United States, or any department or agency
thereof, who publishes, divulges, discloses, or makes known in any
manner or to any extent not authorized by law any information coming to
him in the course of his or her employment or official duties or by
reason of any examination or investigation made by, report or record
made to or filed with, such department or agency, or officer or
employee thereof, which information is exempt from disclosure under
this subsection, shall be fined not more than $1,000, or imprisoned not
more than one year, or both, and may be removed from office or
employment and shall be subject to a civil penalty of not more than
$1,000.''.
(2) Section 206 of the International Emergency Economic
Powers Act (50 U.S.C. 1705) is amended by inserting ``or
attempts to violate,'' after ``violates'' in subsection (a);
and by inserting ``or willfully attempts to violate,'' after
``violates'' in subsection (b).
(d) Civil Aircraft Equipment.--Except as necessary to comply with
international obligations under the International Emergency Economic
Powers Act (Public Law 95-223) (50 U.S.C. 1701 et seq.) or the United
Nations Participation Act of 1945, as amended (Public Law 79-264 (22
U.S.C. 287 et seq.), notwithstanding any other provision of law, any
product (1) which is standard equipment, certified by the Federal
Aviation Administration, in civil aircraft and is an integral part of
such aircraft, and (2) which is to be exported to a country other than
a controlled country, shall be subject to export controls exclusively
under this Act. Any such product shall not be subject to controls under
section 38(b)(2) of the Arms Export Control Act (22 U.S.C. 2778(b)(2)).
(e) Nuclear Nonproliferation Controls.--
(1) Nothing in section 5 of this Act shall be construed to
supersede the procedures published by the President pursuant to
section 309(c) of the Nuclear Non-Proliferation Act of 1978 (42
U.S.C. 2139a(c)).
(2) The procedures published by the President pursuant to
section 309(c) of the Nuclear Non-Proliferation act of 1978 (42
U.S.C. 2139a(c)) shall be superseded to the extent they are
inconsistent with the provisions of section 8 of this Act.
(f) Conforming Amendment to the Arms Export Control Act.--
(1) Section 73 of the Arms Export Control Act (Public Law
90-626), as amended by section 1703 of the National Defense
Authorization Act of 1991 (Public Law 101-510) (U.S.C. 2797B),
is hereby repealed.
(2) Section 81 of the Arms Export Control Act (Public Law
90-626), as amended by section 305 of the Miscellaneous Foreign
Affairs Act of 1991 (Public Law 102-182) (22 U.S.C. 2798), is
hereby repealed.
(3) Sections 306, 307, 308, and 309(b) of the Chemical and
Biological Weapons Control and Warfare Elimination Act of 1991
(Public Law 102-182) (22 U.S.C. 5604, 5605, and 5606) are
hereby repealed.
(4) Section 74 of the Arms Export Control Act (Public Law
90-626), as amended by section 1703 of the National Defense
Authorization Act for Fiscal Year 1991 (Public Law 101-510) (22
U.S.C. 2794c) is amended by redesignating ``Section 74'' as
``Section 73''. It is further amended to read as follows:
``SEC. 73. DEFINITIONS.
``For purposes of this chapter--
``(1) Australia group (`ag').--The term `Australia Group'
or `AG' means the multilateral arrangement in which the United
States participates that seeks to prevent the proliferation of
chemical and biological weapons;
``(2) Biological weapons convention.--The term `Biological
Weapons Convention' refers to the Convention on the Prohibition
of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their
Destruction of 1972'';
``(3) Chemical weapons convention.--The term `Chemical
Weapons Convention' refers to the Convention on the Prohibition
of the Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction of 1992;
``(4) Facilitating the activity.--The term `facilitating
the activity' includes but is not limited to, acting as a
freight forwarder, shipper, designated export or import agent,
consignee, purchasing agent, marketing agent, manufacturer,
assembler, designer, financier, or end use with respect to the
services or items to be exported, transferred, or provided;
``(5) Financial transactions.--The term `financial
transactions' means any transactions involving the exchange,
transfer, crediting, debiting, deposit, withdrawal, or payment
of currency, securities, debt, credit, checks, other monetary
instruments, precious metals or minerals, or other items of
value whether physically or by electronic means. The term is
intended to be interpreted broadly to include such transactions
as the opening or drawing down of letters of credit, the
extension of a loan, the receipt of payment, or the use of
credit cards;
``(6) Item.--The term `item' means any commodity,
technology, or software;
``(7) Missile.--The term `missile' means any missile system
or component listed in category I of the MTCR Annex, and any
other unmanned delivery system or component of similar
capability, as well as the specially designed production
facilities for these systems;
``(8) Missile technology control regime (`mtcr').--The term
`Missile Technology Control Regime' or `MTCR' means the policy
statement and guidelines between the United States, the United
Kingdom, the Federal Republic of Germany, France, Italy,
Canada, and Japan, announced on April 16, 1987, to restrict
sensitive missile-related transfers based on the MTCR Annex,
and any amendments to the Annex or Regime;
``(A) MTCR adherent.--The term `MTCR adherent'
means a country that is a member of 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;
``(B) MTCR annex.--The term `MTCR Annex' means the
Equipment and Technology Annex of the MTCR and any
amendments thereto;
``(9) Nuclear suppliers' group (`nsg').--The term `Nuclear
Suppliers' Group' or `NSG' means the multilateral arrangement
in which the United States participates whose purpose is to
restrict transfers of items with sensitive nuclear
applications;
``(10) Person.--The term `person' includes--
``(A) the single and plural of any individual,
corporation, partnership, business association,
society, trust, organization, or other group created or
organized under the laws of a country; or
``(B) any government, governmental body,
corporation, trust, agency, department, division, or
group operating as a business enterprise;
``(11) Protocol on biological warfare.--The term `Protocol
on Biological Warfare' refers to the Protocol for the
Prohibition of the Use in War of Asphyxiating, Poisonous or
Other Gases, and of Bacteriological Methods of Warfare of 1925;
and
``(12) Weapons of mass destruction.--The term `weapons of
mass destruction' means any chemical or biological weapons or
nuclear explosive devices.''.
(5) Section 323 of the Foreign Relations Authorization Act
for Fiscal Years 1992-93 (Public Law 102-138) is hereby
repealed.
(g) Effect on Section 38(e) of the Arms Export Control Act.--This
Act modifies provisions of the Export Administration Act of 1979, as
amended, which are incorporated by reference in section 38(e) of the
Arms Export Control Act (22 U.S.C. 2778(e)). The changes made to such
provisions shall have no effect on the administration and enforcement
of section 38(e) of the Arms Export Control Act. The relevant
provisions of the Export Administration Act of 1979, as amended, shall
continue to have full force and effect for purposes of that Act.
(Add conforming amendments for the approximately 60 statutory
references to the EAA in other Federal statutes.)
SEC. 16. AUTHORIZATION OF APPROPRIATIONS.
Authorization.--There are authorized to be appropriated to the
Department of Commerce to carry out the purposes of this Act--
(1) $43,372,000 for fiscal year 1995, and such amounts as
may be necessary for fiscal year 1996; and
(2) such additional amounts for each of the fiscal years
1995 and 1996 as may be necessary for increases in salary, pay,
retirement, other employee benefits authorized by law, and
other non-discretionary costs.
SEC. 17. EFFECTIVE DATE.
This Act shall take effect upon the expiration of the Export
Administration Act of 1979.
SEC. 18. SAVINGS PROVISION.
(a) In General.--All delegations, rules, regulations, orders,
determinations, licenses, sanctions, or other forms of administrative
action which have been made, issued, conducted, or allowed to become
effective under the Export Control Act of 1949, the Export
Administration Act of 1969, the Export Administration Act of 1979, or
the Arms Export Control Act and which are in effect at the time this
Act or the Arms Export Control Act takes effect, shall continue in
effect according to their terms until modified, superseded, set aside,
or revoked under this Act or the Arms Export Control Act.
(b) Repeal.--Title XVII of the National Defense Authorization Act
for Fiscal Year 1991 (Public Law 101-510) and sections 301-308 and
309(b) of the Chemical and Biological Weapons Control and Warfare
Elimination Act of 1991 (Public Law 102-182) and amendments to these
Acts are hereby repealed.
(c) Administrative Proceedings.--This Act shall not apply to any
administrative proceedings commenced or any application for a license
made, under the Export Administration Act of 1979, which is pending at
the time this Act takes effect.
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