[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5828 Introduced in House (IH)]
110th CONGRESS
2d Session
H. R. 5828
To enhance the reliability of information in the Automated Export
System, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 17, 2008
Mr. Manzullo (for himself and Mr. Smith of Washington) introduced the
following bill; which was referred to the Committee on Foreign Affairs
_______________________________________________________________________
A BILL
To enhance the reliability of information in the Automated Export
System, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Securing Exports Through
Coordination and Technology Act''.
SEC. 2. MANDATORY ELECTRONIC FILING OF EXPORT DATA.
Section 1404(b) of the Foreign Relations Authorization Act, Fiscal
Year 2003 (13 U.S.C. 301 note) is amended to read as follows:.
``(b) In General.--
``(1) Filing through aes.--The Secretary of Commerce, in
consultation with the Secretary of State, the Secretary of
Defense, the Secretary of the Treasury, and the Secretary of
Homeland Security, shall publish regulations in the Federal
Register to require that upon the effective date of the
regulations, persons who are required to file Shipper's Export
Declarations under chapter 9 of title 13, United States Code,
file (either themselves or through their intermediaries) such
Declarations through the Automated Export System before the
items are exported from any United States port, unless the
Secretary of Commerce determines that it is appropriate to
grant an exception to this requirement. Such filing of data
shall, at a minimum, include--
``(A) the name and address of the principal party-
in-interest in the United States;
``(B) the foreign principal party-in-interest;
``(C) all intermediate consignees;
``(D) the ultimate consignee;
``(E) the commodity classification of each item
being exported;
``(F) when appropriate, the license number or
regulatory authorization for the export; and
``(G) a declaration, under penalty of perjury under
the laws of the United States, that the information
filed under this paragraph is true and correct.
``(2) Intermediary defined.--In this subsection, the term
`intermediary' means a freight forwarder, a non-vessel
operating common carrier (NVOCC), an ATA (Admission Temporaire/
Temporary Admission) Carnet national guaranteeing association
and its service providers, or any other similar entity as
determined by the Secretary of Commerce.''.
SEC. 3. CONFIDENTIALITY OF SHIPPER'S EXPORT DECLARATIONS; CONFERENCES;
AUTOMATED EXPORT SYSTEM LICENSES AND FILINGS.
Chapter 9 of title 13, United States Code, is amended--
(1) by redesignating sections 302 through 307 as sections
306 through 311, respectively; and
(2) by inserting after section 301 the following new
sections:
``Sec. 302. Confidentiality of Shipper's Export Declarations
``(a) Confidentiality.--Shipper's Export Declarations and Automated
Export System filings (or any successor document), wherever located,
shall be exempt from disclosure to the public, except to the extent
that the information in such filings is made available under subsection
(b)(1) and is introduced into evidence, and made a part of the public
record, in an enforcement proceeding pursuant thereto.
``(b) Sharing With Other Agencies and Governments.--
``(1) Agencies in the united states.--The Secretary shall,
if the Secretary determines that it is in the national interest
to do so, provide for the sharing of Shipper's Export
Declaration information with other Federal departments and
agencies in order to enforce or administer export laws and
regulations of the United States, and for such other purposes
as the Secretary may determine.
``(2) Foreign governments.--The Secretary may, if the
Secretary determines, on a case by case basis, that it is in
the national interest to do so, provide for the sharing of
Shipper's Export Declaration information with foreign
governments to assist in the enforcement of export laws and
regulations of the United States and to conduct and coordinate
programs to combat terrorism and the proliferation of weapons
of mass destruction, except that the sharing of such
information may be permitted only if the foreign government
concerned--
``(A) has certified to the Secretary that the
information shared will only be used for the purpose of
enforcing export laws and regulations of the United
States, international agreements providing for the
nonproliferation of weapons to which the United States
is a party, or multilateral export control regimes to
which the United States is a party; and
``(B) has, through a bilateral or multilateral
agreement (including a memorandum of understanding) to
which the United States is a party, agreed that the
information shared will not be disclosed to any
commercial entity.
``(c) Information Not To Be Withheld From Congress.--Nothing in
this section shall be construed as authorizing the withholding of
information from the Congress.
``Sec. 303. Conferences and seminars
``(a) Mandatory Conference Participation.--The Secretary shall work
with the Secretary of State, the Secretary of Defense, the Secretary of
Homeland Security, and the Secretary of the Treasury to ensure that
appropriate personnel of each of their respective departments and
agencies that are involved in the regulation of exports or the
enforcement of such regulation are made available to participate in
fora the purpose of which is to educate exporters about laws and
regulations of the United States governing exports and about the
Automated Export System in particular, including through seminars,
educational or training meetings, exhibitions, symposiums, and other
similar meetings.
``(b) Authority To Collect Fees.--The Secretary may collect fees
from any individual or other person attending or participating in any
forum described in subsection (a) that is conducted by, or jointly
with, the Department of Commerce. The Secretary may use contractors to
collect such fees. Fees under this subsection may be collected in
advance of the forum.
``(c) Disposition of Collected Fees.--Amounts collected under
subsection (b) shall be used to pay all or part of the cost of fora
described in subsection (a), and shall be credited to the account from
which the costs of such fora have been paid or will be paid.
``(d) Budget for Participating Agencies.--In the case of any agency
that does not have the available funds to participate in a forum under
subsection (a), the Secretary shall make such sums available, from fees
collected under subsection (b), as are necessary to allow such
participation by the agency.
``(e) Availability of Materials to the Public.--The Secretary shall
make available to the public, including through its public website, the
materials provided for the fora held under subsection (a).
``Sec. 304. Automated Export System licenses for filers
``(a) Licenses.--
``(1) In general.--The Secretary may establish a licensing
program to grant licenses to persons to file information in the
Automated Export System, either on behalf of themselves or
acting as an intermediary. Such licensing program may provide
licenses to individuals as well as any corporation,
association, or partnership that is organized under the laws of
the United States or of any State, the District of Columbia, or
any commonwealth, territory, or possession of the United
States. Such licensing program may further provide for the
authorization of multiple filers of data on behalf of any such
corporation, association, or partnership.
``(2) Qualifications for individuals.--The Secretary may
establish qualification requirements for an individual applying
for a license under this subsection, except that an individual
may be granted a license only if the individual is a United
States citizen, an alien lawfully admitted for permanent
residence to the United States, or a national of the United
States (in the case of a resident of a territory or possession
of the United States). In assessing the qualification of a
license applicant, the Secretary may conduct an examination to
determine the applicant's knowledge of the Automated Export
System and laws, regulations, and procedures related to the
export of goods from the United States, and may require
participation in a continuing education program on a periodic
basis. The Secretary may also obtain information to determine
an applicant's fitness and character to act as an Automated
Export System filer.
``(3) Licenses for corporations and other business
entities.--The Secretary may grant an Automated Export System
filing license to a corporation, association, or partnership
only if at least one official of the corporation or association
who is designated by the corporation or association, or one
member of the partnership who is authorized to act on behalf of
the partnership--
``(A) holds a valid Automated Export System license
under paragraph (2);
``(B) is responsible for the supervision and
control of filing Shipper's Export Declaration
information in the Automated Export System; and
``(C) is a United States citizen, an alien lawfully
admitted for permanent residence to the United States,
or a national of the United States (in the case of a
resident of a territory or possession of the United
States).
``(4) Lapse of license.--Licenses under this subsection
shall be granted for a period of not less than 3 years, and may
be renewed in such manner and under such conditions as are
established by the Secretary.
``(b) Denial, Suspension, or Revocation of License.--
``(1) General rule.--The Secretary may deny, revoke, or
suspend a license or license application under subsection (a)
if the Secretary has reason to believe that the applicant or
licensee has violated or will violate any regulations issued by
the Secretary under this section or any law or regulation of
the United States controlling exports. The Secretary may
provide rules for notifying licensees and license applicants of
the Secretary's process for denying, revoking, or suspending a
license or license application, consistent with the Secretary's
responsibility to protect national security.
``(2) Procedures for denial, revocation, or suspension.--
``(A) In general.--If an application is denied or a
license revoked or suspended under paragraph (1), the
Secretary shall send the applicant or licensee notice
in writing specifically setting forth the grounds for
denial, suspension, or revocation, shall allow the
applicant or licensee a period of 30 calendar days
beginning on the date on which the notice is received
to respond in writing, and shall advise the licensee or
applicant of the right to a hearing. An applicant or
licensee may request an extension of time for such
response, and the Secretary shall grant such extension
for good cause shown. If no response is filed within
that 30-day period, or any extension thereof, and the
Secretary determines that the denial, suspension, or
revocation is still warranted, the denial, suspension,
or revocation shall become final.
``(B) Hearing.--If a timely response is received
under subparagraph (A) and the licensee or applicant
requests a hearing, a hearing shall be held within 30
calendar days after the date on which the request is
received, or at a later date if the applicant requests
an extension and shows good cause therefor. An
administrative law judge appointed under section 3105
of title 5, United States Code, shall preside at the
hearing, which shall be conducted in accordance with
regulations issued by the Secretary. The administrative
law judge shall issue a written decision, based solely
on the record, setting forth the findings of fact, and
the reasons for the decision.
``(C) Suspension of license pending appeal.--In a
case in which a person appeals a decision revoking or
suspending a license under this subsection, including
an appeal under subsection (c), the Secretary may order
that the license continue to be suspended while the
appeal is pending.
``(c) Denial, Suspension, or Revocation of License.--
``(1) General rule.--The Secretary may deny, revoke, or
suspend a license or license application under subsection (a)
if the Secretary has reason to believe that the applicant or
licensee has violated or will violate any regulations issued by
the Secretary under this section or any law or regulation of
the United States controlling exports. The Secretary may
provide rules for notifying licensees and license applicants of
the Secretary's process for denying, revoking, or suspending a
license or license application, consistent with the Secretary's
responsibility to protect national security.
``(2) Procedures for denial, revocation, or suspension.--
``(A) In general.--If an application is denied or a
license revoked or suspended under paragraph (1), the
Secretary shall send the applicant or licensee notice
in writing specifically setting forth the grounds for
denial, suspension, or revocation, shall allow the
applicant or licensee a period of 30 calendar days
beginning on the date on which the notice is received
to respond in writing, and shall advise the licensee or
applicant of the right to a hearing. An applicant or
licensee may request an extension of time for such
response, and the Secretary shall grant such extension
for good cause shown. If no response is filed within
that 30-day period, or any extension thereof, and the
Secretary determines that the denial, suspension, or
revocation is still warranted, the denial, suspension,
or revocation shall become final.
``(B) Hearing.--If a timely response is received
under subparagraph (A) and the licensee or applicant
requests a hearing, a hearing shall be held within 30
calendar days after the date the request is received,
or at a later date if the applicant requests an
extension and shows good cause therefor. An
administrative law judge appointed under section 3105
of title 5, United States Code, shall preside at the
hearing, which shall be conducted in accordance with
regulations issued by the Secretary. The administrative
law judge shall issue a written decision, based solely
on the record, setting forth the findings of fact, and
the reasons for the decision.
``(C) Suspension of license pending appeal.--In a
case in which a person appeals a decision revoking or
suspending a license under this subsection, including
an appeal under subsection (c), the Secretary may order
that the license continue to be suspended while the
appeal is pending.
``(3) Settlement and compromise.--The Secretary may settle
and compromise any proceeding that has been instituted under
this subsection according to the terms and conditions agreed to
by the parties, including the reduction of any proposed
suspension or revocation.
``(4) Limitation of actions.--A proceeding under this
subsection may be commenced only if the appropriate service of
written notice is made within 3 years after the date on which
the alleged act described in paragraph (1) was committed,
except that if the alleged act consists of fraud, the 3-year
period shall begin on the date on which the alleged act was
discovered.
``(d) Judicial Appeal.--
``(1) In general.--A licensee under this section, or an
applicant for a license under this section, may appeal any
decision of the Secretary denying, suspending, or revoking the
license by filing in the appropriate United States district
court, within 60 days after the date on which the decision is
issued, a written petition requesting that the decision be
modified or set aside in whole or in part. A copy of the
petition shall be served upon the Secretary or the Secretary's
designee. In cases involving revocation or suspension of a
license, the Secretary, after receiving the petition, shall
file in the court the record upon which the decision complained
of was entered.
``(2) Failure to appeal.--If an appeal is not filed within
the time limits specified in paragraph (1), the decision of the
Secretary shall be final and conclusive.
``(e) Fees and Charges.--The Secretary may issue regulations
prescribing reasonable fees and charges, with particular sensitivity to
small businesses, to defray the costs of the Secretary in carrying out
this section.
``(f) Regulations.--The Secretary shall provide a period of at
least 90 days for the submission of public comments on any regulations
issued to carry out this section, before such regulations may become
effective.
``Sec. 305. Blocking prohibited or restricted exports
``(a) In General.--The Secretary, in consultation with the
Secretary of State, the Secretary of Defense, the Secretary of Homeland
Security, and the Secretary of the Treasury, shall issue regulations to
ensure that the Automated Export System will not accept the filing of
data in connection with an export from the United States if the name or
address of any party to a transaction involved in the intended export,
or the country of destination of the intended export, would result in
the export violating the prohibitions or restrictions in the export
control or trade sanctions regulations administered by the Secretary,
the Secretary of State, or the Secretary of the Treasury.
``(b) Incorporation Into Automated Export System of Changes in
Law.--Not later than 1 year after the date of the enactment of Securing
Exports Through Coordination and Technology Act, the Secretary, in
consultation with the Secretary of State, the Secretary of Defense, the
Secretary of Homeland Security, and the Secretary of the Treasury,
shall ensure, to the extent feasible, that changes in laws and
regulations controlling exports, including changes under the Arms
Export Control Act, the Export Administration Act of 1979, the
International Economic Emergency Powers Act, and the Foreign Assistance
Act of 1961, are promptly reflected in the Automated Export System.
``(c) Minimum Requirements.--The Secretary shall ensure that the
Automated Export System contains at least the following operational
features and provides the following notifications to filers:
``(1) Codes entered into the Automated Export System to
identify an export, whether by classification under the
Harmonized Tariff Schedule or otherwise, will alert the
exporter of potential export license requirements under the
Export Administration Regulations or the International Traffic
in Arms Regulations (ITAR).
``(2) Automated Export System will issue a Fatal Error
notice when data entered for an export contain any of the
following:
``(A) The name or address of an individual or legal
entity that has been described on any restricted party
list and the data are not accompanied by the necessary
export authorization.
``(B) The intermediate or ultimate country of
destination is subject to trade sanctions imposed by
the United States and the data are not accompanied by
the necessary export authorization.
``(C) In the case of defense articles and defense
services, the country of the intermediate or ultimate
consignee is subject to an arms embargo or prohibition
imposed by the United State and the data are not
accompanied by the necessary export license.
``(3) Automated Export System will issue compliance alerts
or other warnings to the filer when data for an export are
entered containing any of the following errors or omissions:
``(A) The Harmonized Tariff System code is
inconsistent with the Export Control Classification
Number or the U.S. Munitions List Category.
``(B) In the case of a dual use item, the license
exception is not available to the country of the
ultimate consignee or to the intermediate or ultimate
consignee.
``(C) In the case of defense articles and defense
services, the U.S. Munitions List Category is
identified but no license number, exemption, or
exception is correctly identified.
``(4) Fatal Error notices, compliance alerts, or other
warnings are accompanied by references to the applicable
regulations and licensing authorities.
``(d) Definitions.--In this section:
``(1) Defense articles and defense services.--The term
`defense articles and defense services' has the meaning given
that term in section 47(7) of the Arms Export Control Act (22
U.S.C. 2794(7)).
``(2) Dual use item.--The term `dual use item' means an
item subject to export controls under the Export Administration
Act of 1979, as continued in effect pursuant to the
International Emergency Economic Powers Act.
``(3) Fatal error notice.--The term `fatal error notice'
means a notice that the transaction for which data are entered
into the Automated Export System cannot be completed.
``(4) Restricted party list.--The term `restricted party
list' means any list maintained by any department or agency of
the United States that is comprised of persons or entities to
whom exports are restricted, including the following:
``(A) The Denied Parties List (or comparable
successor list) of the Department of Commerce under the
Export Administration Regulations (15 C.F.R. 764
Supplement No. 2).
``(B) The Entity List (or comparable successor
list) of the Department of Commerce under the Export
Administration Regulations (15 C.F.R. 774 Supplement
No. 4).
``(C) The list of entities under General Order No.
3 of the Department of Commerce under the Export
Administration Regulations (15 C.F.R. 736, Supp. No. 1)
(or comparable successor list).
``(D) Those persons and entities with whom
transactions are blocked pursuant to section 203 of the
International Emergency Economic Powers Act (50 U.S.C.
1702).
``(E) A person to whom exports of defense articles
or defense services are restricted under section
38(g)(4) of the Arms Export Control Act (22 U.S.C.
2778(g)(4)) or section 127.7 of title 22, Code of
Federal Regulations (or successor provision).
``(e) Construction.--Nothing in this section shall be construed to
authorize an export because the Automated Export System accepts the
filing of data.''.
SEC. 4. DEFINITIONS.
Chapter 9 of title 13, United States Code, is amended by adding at
the end the following new section:
``Sec. 312. Definitions
``In this chapter:
``(1) Automated export system.--The term `Automated Export
System' means the automated and electronic system for filing
export information established under this chapter.
``(2) Filer.--The term `filer' means an individual or legal
entity that is authorized to submit a Shipper's Export
Declaration or Automated Export System record to the Federal
Government.
``(3) Intermediary.--The term `intermediary' means a
freight forwarder, a non-vessel operating common carrier
(NVOCC), an ATA (Admission Temporaire/Temporary Admission)
Carnet national guaranteeing association and its service
providers, or any other similar entity as determined by the
Secretary.
``(4) Shipper's export declaration.--The term `Shipper's
Export Declaration' means the export information filed under
this chapter.''.
SEC. 5. CONFORMING AMENDMENTS.
(a) Collection and Publication.--Section 301 of title 13, United
States Code, is amended by striking subsection (g) and redesignating
subsection (h) as subsection (g).
(b) Regulations, Orders, etc.--Section 306 of title 13, United
States Code, as redesignated by section 3(1) of this Act, is amended by
striking the last sentence and inserting ``The Secretary shall make
rules, regulations, and orders, and amendments thereto, in consultation
with the Secretary of Homeland Security.''.
(c) Cross References.--Section 309 of title 13, United States Code,
as redesignated by section 3(1) of this Act, is amended--
(1) in subsection (b), by striking ``304'' and inserting
``308''; and
(2) in subsection (c)--
(A) in paragraph (1), by striking ``304'' and
inserting ``308'';
(B) in paragraph (4), by striking ``306'' and
inserting ``310''; and
(C) in paragraph (5), by striking ``304'' and
inserting ``308''.
(d) Table of Contents.--The table of contents for chapter 9 of
title 13, United States Code, is amended to read as follows:
``Chapter 9
``301. Collection and publication.
``302. Confidentiality of Shipper's Export Declarations.
``303. Conferences and seminars.
``304. Automated Export System licenses for filers.
``305. Blocking prohibited or restricted exports.
``306. Rules, regulations, and orders.
``307. Secretary of Treasury functions.
``308. Filing export information, delayed filings, penalties for
failure to file.
``309. Penalties for unlawful export information activities.
``310. Delegation of functions.
``311. Relationship to general census law.
``312. Definitions.''.
SEC. 6. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out the amendments made by this Act.
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