I

103D CONGRESS

1ST SESSION H. R. 3412

To provide fundamental reform of the system and authority to regulate

commercial exports, to enhance the effectiveness of export controls, to

strengthen multilateral export control regimes, and to improve the efficiency of export regulation.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 28, 1993

Mr. ROTH (for himself and Mr. OBERSTAR) introduced the following bill;

which was referred jointly to the Committees on Foreign Affairs, Ways

and Means, and Rules

A BILL

To provide fundamental reform of the system and authority

to regulate commercial exports, to enhance the effectiveness of export controls, to strengthen multilateral export

control regimes, and to improve the efficiency of export

regulation.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Commercial Export Administration Act of 1993’’.

6 (b) TABLE OF CONTENTS.—

TABLE OF CONTENTS
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Sec. 1. Short title; table of contents.

Sec. 2. Findings and policy.

Sec. 3. General provisions.

Sec. 4. National security controls.

Sec. 5. Emergency controls.

Sec. 6. Export control authorities.

Sec. 7. Commercial export licenses and licensing procedures.

Sec. 8. Penalties, administrative procedures, and sanctions.

Sec. 9. Definitions; reports.

Sec. 10. Effect on other acts; conforming amendments.

Sec. 11. Authorization of appropriations; termination date.

Sec. 12. Miscellaneous provisions.

1 SEC. 2. FINDINGS AND POLICY.

2 (a) FINDINGS.—The Congress makes the following

3 findings:

4 (1) The ability of United States citizens to en5 gage in international commerce is a fundamental

6 right, which is to be abridged only under specific

7 conditions for critical national security or foreign

8 policy reasons. In principle, exports of commercial

9 goods and technology are unrestricted, except as

10 specified in this Act.

11 (2) Exporting is critical to the economic health

12 of the United States and, therefore, to its national

13 security as well. With the growing importance of ex14 ports to sustained United States economic growth

15 and vitality, restrictions on exports should be consid16 ered within the broader framework of the economic

17 performance of the United States. Restrictions on

18 commercial exports from the United States have had

19 serious adverse effects on economic competitiveness

20 and domestic employment, particularly when re-
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1 straints applied by the United States are more ex2 tensive than those imposed by other countries or

3 when United States export control policy is uncer4 tain.

5 (3) Traditional strategic threats of Warsaw

6 Pact military capabilities have fundamentally

7 changed; new security threats lie in the proliferation

8 of weapons of mass destruction, that is, nuclear,

9 chemical, and biological weapons, missiles, and ad10 vanced delivery systems. Availability to certain coun11 tries and endusers of items that contribute to mili12 tary or proliferation potential is a fundamental con13 cern of the United States and should be eliminated

14 through negotiations and other appropriate means

15 whenever possible.

16 (4) In order for export controls to be effective,

17 they must be maintained multilaterally by supplier

18 countries, and focused only on those commercial

19 goods or technology that would directly, substan20 tially, and materially contribute to the military or

21 proliferation potential of countries or endusers pos22 ing a strategic threat to the United States. Ad hoc

23 approaches to export controls are no longer suffi24 cient. Greater coordination, formalization, simplifica-
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1 tion, and consolidation of existing multilateral export

2 control regimes are necessary.

3 (5) Unilateral controls are not effective in

4 changing the actions or policies of other govern5 ments. Unilateral emergency controls should only be

6 imposed temporarily in order to allow time to seek

7 multilateral support. If negotiations fail, emergency

8 controls should expire, unless a further extension is

9 approved by the Congress or the emergency controls

10 are upgraded to an embargo.

11 (6) In order for export controls to be effective,

12 United States exporters and the United States Gov13 ernment must work closely together in developing,

14 implementing, harmonizing, and enforcing export

15 controls. The Government must clearly and specifi16 cally define which items are controlled to which spe17 cific destinations and endusers. Effectiveness of ex18 port controls is largely based on voluntary compli19 ance by the exporting public; it is, therefore, impera20 tive that industry be clearly informed in a timely

21 fashion about export control regulations and policies,

22 and that United States exporters know their cus23 tomers and, to the greatest extent practicable, the

24 ultimate destination of their products.
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1 (7) Export controls cannot, by themselves, stop

2 the development of capabilities to produce weapons

3 of mass destruction. Export controls should, there4 fore, be applied as part of a well-reasoned, com5 prehensive national response to security threats, tak6 ing into account the limitations and the realities of

7 whether goods or technology are controllable.

8 (8) The residual Cold War system of export

9 controls faces basic problems that hamper the effec10 tiveness of export controls and unnecessarily im11 pedes legitimate United States commercial exports.

12 The United States export control system must be

13 fundamentally and substantially reformed to address

14 more effectively the current security challenges and

15 to achieve the goals of an effective and efficient ex16 port control program.

17 (b) POLICY.—It is the policy of the United States—

18 (1) to encourage and support trade with all

19 countries with which the United States has diplo20 matic or trading relations;

21 (2) that exports of commercial goods and tech22 nology are unrestricted, to be abridged only for criti23 cal national security or foreign policy reasons to the

24 extent provided in this Act;
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1 (3) that absent the requirement for a validated

2 license, as indicated by the inclusion of specific

3 goods and technology on the export control index to

4 specified countries and endusers, no authority or

5 permission to export is required;

6 (4) to minimize unnecessary restrictions and

7 uncertainty in export control policy;

8 (5) to apply any necessary export controls in

9 cooperation with other supplier nations as part of

10 multilateral export control regimes under section 4,

11 and to strengthen such efforts to better coordinate,

12 formalize, and even consolidate national export con13 trol policies;

14 (6) to impose unilateral controls, under the pro15 cedures and conditions set forth in section 5, only in

16 response to an immediate and extraordinary threat

17 to the national security or foreign policy of the Unit18 ed States, and only after full consideration of the

19 economic impact of the controls and their effective20 ness in achieving the intended objectives, and for a

21 limited time in order to negotiate for multilaterial

22 controls;

23 (7) to restrict the export or reexport of only

24 those commercial goods and technology that would

25 directly, substantially, and materially—
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1 (A) contribute to the military potential of

2 countries posing a strategic threat to the Unit3 ed States, or

4 (B) enable a country or enduser to acquire

5 the capability to develop, produce, stockpile,

6 use, or deliver weapons of mass destruction, but

7 only if such goods and technology are control8 lable;

9 (8) to administer export controls consistent

10 with basic standards of due process and to provide

11 specific guidelines to United States exporters,

12 through the publication of regulations, public no13 tices, and advisory opinions with respect to goods,

14 technology, sectors, license processing policies and

15 practices, destinations, and endusers subject to spe16 cific types of controls or exemptions from controls;

17 and

18 (9) to consolidate and simplify the regulation,

19 reporting, and documentation required of exporters.

20 SEC. 3. GENERAL PROVISIONS.

21 (a) RIGHT OF EXPORT.—No authority or permission

22 to export commercial goods and technology may be re23 quired under this Act or any other provision of law (other

24 than the Atomic Energy Act of 1954), except as provided
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1 in sections 4 and 5 of this Act and in sections 7 and 8(b)

2 of the Export Administration Act of 1979.

3 (b) UNITED STATES COMMERCIAL EXPORT CONTROL

4 INDEX.—

5 (1) IN GENERAL.—The Secretary shall—

6 (A) establish and maintain a United States

7 Commercial Export Control Index which shall

8 identify all commercial goods or technology on

9 which controls are imposed under this Act;

10 (B) specify the license requirements appli11 cable to the items on the control index; and

12 (C) designate countries and endusers to

13 which exports and reexports of commercial

14 goods and technology are controlled.

15 (2) CONTENTS.—The control index shall—

16 (A) consist of a security control list of all

17 commercial goods and technology on which ex18 port and reexport controls are imposed under

19 section 4, and an emergency control list of all

20 goods and technology on which export and reex21 port controls are imposed under section 5;

22 (B) for each item on the control index,

23 specify with particularity the performance and

24 other identifying characteristics of the item and
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1 provide a rationale for why the item is on the

2 control list;

3 (C) identify countries and endusers to

4 which exports are reexports are controlled, in5 cluding specific projects and endusers of con6 cern, cross-referenced with the list of goods and

7 technology on which export and reexport con8 trols are imposed; and

9 (D) be sufficiently specific and clear as to

10 guide exporters and licensing officers in deter11 minations of licensing requirements under this

12 Act.

13 (3) LICENSING OF CONTROL INDEX GOODS AND

14 TECHNOLOGY.—A validated license may be required

15 for the export or reexport of those commercial goods

16 and technology that are specifically and clearly iden17 tified on the control index to countries and endusers

18 so designated on the control index. No authority or

19 permission may be required to export or reexport

20 commercial goods and technology not so identified to

21 any country or enduser not so designated.

22 (4) REVIEW OF INDEX.—

23 (A) IN GENERAL.—The Secretary shall re24 view all goods and technology on the control

25 index maintained under paragraph (1) at least
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1 annually. This review shall apply to the removal

2 of items from the control index or changes in

3 specifications of items on the control index. The

4 Secretary shall use the data developed from

5 such reviews in formulating United States pro6 posals for revision of multilateral controls in

7 COCOM and other export control regimes de8 scribed in section 4.

9 (B) CONSIDERATIONS.—In conducting the

10 annual review, the Secretary shall—

11 (i) consult with the appropriate indus12 try advisory committees appointed under

13 section 6(d) and consider—

14 (I) recommendations of such

15 committees with respect to proposed

16 changes in the control index; and

17 (II) proposals of such committees

18 for the removal, by the date on which

19 the applicable export control regime

20 would implement such removal, of li21 censing requirements under this Act

22 for goods or technology which are an23 ticipated to be widely available from

24 countries that are not members of

25 that export control regime as a result
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1 of advances in the technological per2 formance levels of such goods or tech3 nology;

4 (ii) consider the results of foreign

5 availability determinations made under

6 subsection (g);

7 (iii) consider comments received pur8 suant to the notice of review provided

9 under subparagraph (C)(ii); and

10 (iv) consult with other departments or

11 agencies as the Secretary considers appro12 priate.

13 (C) PROCEDURES.—

14 (i) DURATION OF REVIEW.—The an15 nual review required under subparagraph

16 (A) may not extend beyond 180 days after

17 such review is begun.

18 (ii) NOTICE OF REVIEW.—Before be19 ginning each annual review, the Secretary

20 shall publish a notice of that review in the

21 Federal Register and shall provide a 30-

22 day period for comments and submission

23 of data, with or without oral presentation,

24 by interested Government agencies, export25 ers, and other interested parties.
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1 (iii) REVISIONS.—The Secretary shall

2 make a determination of any revisions in

3 the control index not later than 30 days

4 after the end of the review period. The

5 concurrence or approval of any other de6 partment or agency shall not be required

7 before any such revision is made. The Sec8 retary shall publish in the Federal Register

9 any revisions in the list, with an expla10 nation of the reasons for the revisions.

11 (5) INDEXING.—The Secretary shall develop,

12 with the assistance of the industry advisory commit13 tees established under section 6(d), methodologies

14 and procedures for indexing products where per15 formance capabilities are measurable. Such meth16 odologies and procedures shall provide for increases

17 in the performance levels of goods and technology on

18 the control index and shall provide for the technical

19 specifications below which no authority or permis20 sion to export or reexport is required as compared

21 to the most technologically advanced commercially

22 available version of the same or equivalent goods or

23 technology. Such methodologies and procedures shall

24 be published and used in the annual list review of

25 the control index under paragraph (4).
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1 (c) ISSUANCE OF REGULATIONS.—

2 (1) IN GENERAL.—The Secretary may issue

3 such regulations as are necessary to carry out this

4 Act.

5 (2) PUBLIC PARTICIPATION.—Unless dem6 onstrated as impracticable, all regulations imposing

7 controls on exports under this Act shall be issued in

8 proposed form with opportunity for public comment

9 before taking effect. If a regulation imposing con10 trols under this Act is issued with immediate effect,

11 opportunity for public comment shall also be pro12 vided and the regulation shall be reissued in final

13 form after public comments have been fully consid14 ered.

15 (3) REPORT.—The Secretary shall report to the

16 Committee on Banking, Housing, and Urban Affairs

17 of the Senate and the Committee on Foreign Affairs

18 of the House of Representatives on the intent and

19 rationale of all proposed regulations under this Act

20 and any proposed amendments to regulations issued

21 under this Act. Such report shall thoroughly evalu22 ate the costs and burden imposed on United States

23 exporters of the proposed regulations or amend24 ments in relation to any enhancement of export li25 censing objectives.
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1 (4) CONSULTATION.—The Secretary shall, in

2 formulating or amending regulations issued under

3 this Act, consult with the industry advisory commit4 tees authorized under section 6(d) before such regu5 lations or amendments are issued. The Secretary, in

6 consultation with appropriate industry advisory com7 mittees, shall review the regulations issued under

8 this Act in order to simplify and clarify such regula9 tions.

10 (d) PUBLICATION OF ACTIONS.—

11 (1) DECISIONS AND ACTIONS OF THE SEC12 RETARY—

13 (A) IN GENERAL.—The Secretary shall

14 publish in the Federal Register, to the greatest

15 extent practicable, actions, procedures, and de16 cisions of the Secretary under this Act, taking

17 into account restrictions on disclosure of classi18 fied or confidential information. The following

19 determinations of the Secretary shall in every

20 case be published in the Federal Register, un21 less a private party requested the determination

22 and asked that it not be published:

23 (i) Classification of a good or tech24 nology on the control index.
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1 (ii) Calculation of a commonly-used

2 control index parameter for a good or tech3 nology, including all officially accepted

4 composite theoretical performance calcula5 tions for computers and microprocessors.

6 (B) NOTICE OF REVISIONS.—Whenever the

7 Secretary makes any revision in the control

8 index with respect to any good or technology, or

9 with respect to any country or destination af10 fected by controls imposed under section 4 or

11 section 5, the Secretary shall publish in the

12 Federal Register a notice of such revision and

13 shall specify in such notice under which author14 ity the revision is being made.

15 (2) EXPORT CONTROL REGIME ACTIONS.—

16 (A) IN GENERAL.—Not more than 90 days

17 after the date of the enactment of this Act, the

18 Secretary shall publish the full text of each

19 International List of COCOM, together with all

20 notes and understandings concerning such lists

21 that are agreed to by COCOM, and the lists

22 and all notes and understandings of all other

23 export control regimes. The Secretary shall up24 date the publication under the preceding sen25 tence at least once in each 1-year period occur-
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1 ring after the original publication under this

2 subparagraph.

3 (B) CONTENTS.—The Secretary shall pub4 lish—

5 (i) the full text of any agreements of

6 COCOM affecting the International Lists,

7 and any agreements of other export control

8 regimes of which the United States is a

9 member, together with all notes, under10 standings, and other aspects of such agree11 ments and all revisions to such texts;

12 (ii) subject to the limitations set forth

13 in subsection (f), decisions on requests for

14 general exceptions to the Industrial List

15 portion of the International Lists of

16 COCOM, and decisions on exceptions for

17 exports permitted by such other export

18 control regimes;

19 (iii) other decisions made by COCOM,

20 and other actions and decisions of such

21 other export control regimes, to the maxi22 mum extent possible; and

23 (iv) lists of controlled countries and

24 controlled endusers, projects of concern

25 with respect to the capability described in
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1 section 2(b)(7)(B), unreliable practices

2 with respect to items on which export or

3 reexport controls are imposed under this

4 Act, and persons to whom sanctions have

5 been applied, or whose export privileges

6 have been denied, under this Act.

7 (C) TIMING.—Such publication shall be

8 made not more than 30 days after the agree9 ments are reached, or the decisions are made,

10 as the case may be.

11 (D) EXCEPTION.—The publication of a

12 particular matter need not be made under this

13 paragraph to the extent that the Secretary sub14 mits a written finding to the Congress that to

15 publish that matter would be contrary to na16 tional or international security, would abridge

17 the confidentiality of the decision-making proc18 esses of COCOM or another export control re19 gime, or would otherwise be inconsistent with

20 the obligations of the United States to COCOM

21 or another export control regime.

22 (e) NOTIFICATION OF THE PUBLIC; CONSULTATION

23 WITH INDUSTRY; RECORDKEEPING.—

24 (1) NOTIFICATION OF THE PUBLIC.—The Sec25 retary shall keep the public fully apprised of changes
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1 in export control policy and procedures instituted

2 under this Act with a view to encouraging trade.

3 (2) CONSULTATION WITH INDUSTRY.—The Sec4 retary shall meet regularly with industry advisory

5 committees appointed under section 6(d) in order to

6 obtain their views on United States export control

7 policy and the foreign availability of commercial

8 goods and technology.

9 (3) REVIEW OF REPORTING REQUIREMENTS.—

10 In the administration of this Act, reporting require11 ments shall be designed so as to reduce the cost of

12 reporting, recordkeeping, and export documentation

13 required under this Act, to the extent feasible and

14 consistent with effective enforcement and compila15 tion of useful trade statistics. Reporting, record16 keeping, and export documentation requirements

17 shall be periodically reviewed and revised in the light

18 of developments in the field of information tech19 nology.

20 (f) CONFIDENTIALITY OF INFORMATION.—

21 (1) EXEMPTIONS FROM DISCLOSURE.—Except

22 as provided in paragraph (2), information obtained

23 by the Secretary under this Act or under previous

24 Acts regarding the control of exports, including any

25 report, export license application, or classification re-
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1 quest which is deemed confidential, or with reference

2 to which a request for confidential treatment is

3 made by the person furnishing such information,

4 shall be exempt from disclosure under section 552 of

5 title 5, United States Code, and such information

6 shall not be published or disclosed unless the Sec7 retary determines that the withholding thereof is

8 contrary to the national interest.

9 (2) INFORMATION TO CONGRESS AND GAO.—

10 (A) IN GENERAL.—Nothing in this Act

11 shall be construed as authorizing the withhold12 ing of information from the Congress or from

13 the General Accounting Office.

14 (B) AVAILABILITY TO THE CONGRESS.—

15 (i) IN GENERAL.—All information ob16 tained at any time under this Act or pre17 vious Acts regarding the control of exports,

18 including any report or export license ap19 plication required under this Act, shall be

20 made available to any committee or sub21 committee of Congress of appropriate ju22 risdiction upon request of the chairman or

23 ranking minority member of such commit24 tee or subcommittee.
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1 (ii) PROHIBITION ON FURTHER DIS2 CLOSURE.—No such committee or sub3 committee, or member thereof, shall dis4 close any information obtained under this

5 Act or previous Acts regarding the control

6 of exports which is submitted on a con7 fidential basis unless the full committee de8 termines that the withholding of that infor9 mation is contrary to the national interest.

10 (C) AVAILABILITY TO THE GAO.—

11 (i) IN GENERAL.—Notwithstanding

12 paragraph (1), information referred to in

13 subparagraph (B) shall, consistent with

14 the protection of intelligence, counterintel15 ligence, and law enforcement sources,

16 methods, and activities, as determined by

17 the agency that originally obtained the in18 formation, and consistent with the provi19 sions of section 716 of title 31, United

20 States Code, be made available only by

21 that agency, upon request, to the Comp22 troller General of the United States or to

23 any officer or employee of the General Ac24 counting Office authorized by the Comp-
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1 troller General to have access to such in2 formation.

3 (ii) PROHIBITION ON FURTHER DIS4 CLOSURE.—No officer or employee of the

5 General Accounting Office shall disclose,

6 except to the Congress in accordance with

7 this paragraph, any such information

8 which is submitted on a confidential basis

9 and from which any individual can be iden10 tified.

11 (3) PENALTIES FOR DISCLOSURE OF CON12 FIDENTIAL INFORMATION.—Any officer or employee

13 of the United States, or any department or agency

14 thereof, who publishes, divulges, discloses, or makes

15 known in any manner or to any extent not author16 ized by law any information to which such officer or

17 employee gains access in the course of his or her em18 ployment or official duties or by reason of any exam19 ination or investigation made by, or report or record

20 made to or filed with, such department or agency,

21 or officer or employee thereof, if such information is

22 exempt from disclosure under this subsection, shall

23 be fined not more than $25,000, or imprisoned not

24 more than 1 year, or both, and shall be removed

25 from office or employment.
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1 (g) FOREIGN AVAILABILITY.—

2 (1) IN GENERAL.—Except when the President

3 determines that the absence of controls under this

4 Act would prove detrimental to the national security

5 of the United States—

6 (A) the Secretary shall not impose controls

7 under this Act on commercial goods or tech8 nology with respect to which it is determined

9 that there is foreign availability; and

10 (B) in the case of any commercial goods or

11 technology with respect to which it is deter12 mined that there is foreign availability, the Sec13 retary shall either—

14 (i) eliminate controls imposed under

15 this Act on such goods or technology; or

16 (ii) in the case of goods or technology

17 the export or reexport of which is con18 trolled under the terms of an export con19 trol regime, propose elimination of export

20 and reexport controls to countries partici21 pating in the regime and eliminate such

22 controls to the extent such countries agree

23 to such elimination.

24 (2) FOREIGN AVAILABILITY REVIEW.—The Sec25 retary, in consultation with appropriate industry ad-
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1 visory committees appointed under section 6(d),

2 shall review and monitor on a continuing basis the

3 foreign availability of any commercial goods or tech4 nology on which controls are or may be imposed

5 under this Act. In so doing, the Secretary shall con6 sider the availability of such goods or technology,

7 and the anticipated availability of such goods and

8 technology within 6 months, within and to controlled

9 countries and countries other than controlled coun10 tries from sources outside the United States, and

11 the extent to which any such source country places

12 and enforces controls on the export of such goods or

13 technology to controlled countries. The Secretary

14 shall not consider the availability under license from

15 a country which maintains export controls on such

16 goods or technology cooperatively with the United

17 States pursuant to the agreement of COCOM or

18 other export control regimes, unless the Secretary

19 determines that the export restrictions maintained

20 by such country are ineffective.

21 (3) PROCEDURES FOR FOREIGN AVAILABILITY

22 DETERMINATIONS.—

23 (A) IN GENERAL.—The United States

24 International Trade Commission (hereafter in

25 this subsection referred to as the ‘‘ITC’’) is
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1 solely responsible for making foreign availability

2 determinations of goods and technology under

3 this Act. The ITC may undertake a foreign

4 availability assessment at any time upon its

5 own initiative, and shall undertake a foreign

6 availability assessment upon a written request

7 by the Secretary, or upon receipt of a written

8 allegation supported by reasonable evidence

9 from the appropriate industry advisory commit10 tee under section 6(d) or a United States per11 son that such availability exists.

12 (B) NOTICE REQUIREMENTS.—Whenever

13 the ITC undertakes a foreign availability as14 sessment under this subsection, the ITC shall

15 publish notice of such assessment in the Fed16 eral Register. Not later than 4 months after

17 initiating such an assessment, the ITC shall de18 termine whether the foreign availability exists,

19 and shall submit for publication in the Federal

20 Register a notice of its determination, together

21 with a concise statement of the basis for its de22 termination. The ITC shall also forward a writ23 ten notice of its determination to the Secretary.

24 (C) ACTION BY THE SECRETARY.—Not

25 later than 30 days after receipt of a determina-
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1 tion by the ITC that foreign availability exists

2 with respect to a commercial good or tech3 nology, the Secretary shall either—

4 (i) eliminate controls under this Act

5 on such commercial good or technology

6 and publish a notice of such action in the

7 Federal Register;

8 (ii) in the case of a commercial good

9 or technology controlled under the terms of

10 export control regime, propose the elimi11 nation of controls on such commercial good

12 or technology in accordance with the proce13 dures of such regime and publish a notice

14 of such proposal in the Federal Register;

15 or

16 (iii) in any case in which the Presi17 dent determines that controls under this

18 Act must be maintained notwithstanding

19 the foreign availability because the absence

20 of such controls would prove detrimental to

21 the national security of the United States,

22 publish a notice of that determination in

23 the Federal Register, together with a con24 cise statement of the basis for that deter25 mination and the estimated economic im-
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1 pact of the decision, and a statement that

2 the applicable steps are being taken under

3 paragraph (4).

4 (4) NEGOTIATIONS TO ELIMINATE FOREIGN

5 AVAILABILITY.—

6 (A) IN GENERAL.—In any case in which

7 export controls are maintained on a commercial

8 good or technology notwithstanding foreign

9 availability on account of a determination by

10 the President that the absence of controls under

11 this Act would prove detrimental to the national

12 security of the United States, the Secretary

13 shall actively pursue negotiations with the gov14 ernments of the countries which are the sources

15 of the good or technology for the purpose of

16 eliminating the foreign availability.

17 (B) REMOVAL OF CONTROLS.—If, not later

18 than 6 months after the determination by the

19 President described in subparagraph (A), the

20 foreign availability of the good or technology

21 has not been eliminated, the Secretary shall re22 move export or reexport controls from the good

23 or technology under this Act and publish notice

24 of such action in the Federal Register.
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1 (C) EFFECT OF AGREEMENT.—After an

2 agreement is reached with a country pursuant

3 to negotiations under this paragraph to elimi4 nate foreign availability of commercial goods or

5 technology, the Secretary may not require a

6 validated license under this Act for the export

7 of such commercial goods or technology to that

8 country.

9 (5) SHARING OF INFORMATION.—Each depart10 ment or agency of the United States, including any

11 intelligence agency, and all contractors with any

12 such department or agency, shall, upon the request

13 of the Secretary or the ITC and consistent with the

14 protection of intelligence sources and methods and

15 safeguarding of classified information, furnish infor16 mation to the ITC concerning foreign availability of

17 goods and technology subject to export controls

18 under this Act. Each such department or agency

19 shall allow the ITC access to any such information

20 from a laboratory or other facility within such de21 partment or agency.

22 (6) REMOVAL OF CONTROLS ON LESS SOPHISTI23 CATED GOODS OR TECHNOLOGY.—In any case in

24 which export or reexport controls are removed from

25 commercial goods or technology under this sub-
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1 section, then such controls may not be imposed or

2 maintained on any similar commercial goods or tech3 nology whose function, technological approach, per4 formance thresholds, and other attributes that form

5 the basis for controls under this Act do not exceed

6 the technical parameters of the commercial goods or

7 technology from which the controls are removed

8 under this subsection.

9 (7) REPORT OF DETERMINATIONS AND AC10 TIONS.—Not later than 10 days after any deter11 mination by the ITC under paragraph (3)(B), or in

12 the case of determination of the President under

13 paragraph (3)(C)(iii), not later than 10 days after

14 the initiation of negotiations under paragraph

15 (4)(A), the Secretary shall submit a report to the

16 Committee on Banking, Housing, and Urban Affairs

17 of the Senate and the Committee on Foreign Affairs

18 of the House of Representatives setting forth a de19 tailed explanation of the determination of the ITC

20 and the determination of the President (if applica21 ble), and the implications of such determinations.

22 SEC. 4. NATIONAL SECURITY CONTROLS.

23 (a) AUTHORITY.—

24 (1) IN GENERAL.—In order to carry out the

25 policy set forth in section 2(b)(7), the President
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1 may, in accordance with this section, prohibit or cur2 tail the export and reexport of any commercial goods

3 or technology subject to the jurisdiction of the Unit4 ed States, if such goods and technology would—

5 (A) directly, substantially, and materially

6 contribute to the military capability of countries

7 or endusers posing a strategic threat to the

8 United States; or

9 (B) directly, substantially, and materially

10 enable a country or enduser to acquire the ca11 pability to develop, produce, stockpile, use, or

12 deliver weapons of mass destruction.

13 (2) EXERCISE OF AUTHORITY.—The authority

14 granted by this subsection shall be exercised by the

15 Secretary, and shall be implemented by means of ex16 port licenses issued by the Secretary.

17 (b) SECURITY CONTROL LIST.—

18 (1) IN GENERAL.—The Secretary shall establish

19 and maintain, as part of the control index estab20 lished under section 3(b), a security control list,

21 comprised of all commercial goods or technology on

22 which export and reexport controls are in effect

23 under this section, and the countries or endusers to

24 which the controls apply. The security control list

25 shall clearly identify the specific commercial goods
30

•HR 3412 IH

1 and technology the export or reexport of which is

2 controlled, and each country and enduser to which

3 such exports and reexports are controlled. Such list

4 shall be reviewed and updated at least once every 12

5 months.

6 (2) CONTROLLED GOODS AND TECHNOLOGY.—

7 Export or reexport controls may be imposed under

8 this section only on commercial goods and tech9 nology that are controllable, only if the controls

10 would be effective in restricting the capabilities set

11 forth in subsection (a)(1), and only if—

12 (A) the export controls are imposed pursu13 ant to an export control regime, such as

14 COCOM, the MTCR, the Australia Group, the

15 Nuclear Suppliers Group, or any export control

16 regime entered into by the United States under

17 subsection (d)(3); or

18 (B) in the absence of an applicable export

19 control regime, no foreign availability of such

20 goods or technology exists.

21 (3) DESIGNATED COUNTRIES AND

22 ENDUSERS.—In administering export controls under

23 this section, the Secretary shall, for each good and

24 technology listed on the security control list, des25 ignate the specific countries and endusers for which
31

•HR 3412 IH

1 export licenses or reexport authorizations are re2 quired. These countries and endusers may include

3 only—

4 (A) controlled countries and controlled

5 endusers; and

6 (B) non-regime countries with respect to

7 the export control regime which controls the ex8 port of such good and technology.

9 (4) CONTROLLED COUNTRIES AND

10 ENDUSERS.—A country may be designated a con11 trolled country, and an enduser may be designated

12 a controlled enduser, with respect to a particular

13 good or technology on the security control list only

14 if exports of such good or technology to such country

15 or enduser are controlled cooperatively pursuant to

16 the agreement of an export control regime, and only

17 if such country or enduser—

18 (A) has military capabilities, policies, or

19 activities which represent a direct strategic

20 threat to the national security of the members

21 of the export control regime; or

22 (B) is engaged in or is deliberately assist23 ing another controlled country or enduser in the

24 design, development, production, stockpiling,

25 use, or delivery of weapons of mass destruction.
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•HR 3412 IH

1 (5) REVISION OF DESIGNATION OF CON2 TROLLED COUNTRIES AND ENDUSERS.—

3 (A) CONTROLLED COUNTRIES.—In any

4 case in which a controlled country—

5 (i) adopts military policies that rep6 resent a lesser strategic threat to members

7 of the appropriate export control regime;

8 (ii) terminates efforts to acquire

9 weapons of mass destruction and adopts

10 policies consistent with international ef11 forts to restrict the proliferation of weap12 ons of mass destruction;

13 (iii) terminates activities that would

14 assist the capabilities of other controlled

15 countries in those activities described in

16 paragraph (4)(B); or

17 (iv) agrees to adhere to policies and

18 practices of the appropriate export control

19 regime and implements an effective export

20 control system;

21 such that the reasons for its being designated

22 a controlled country cease to exist, the Sec23 retary shall propose to the appropriate export

24 control regime to remove the country’s designa25 tion as a controlled country. Upon the removal
33

•HR 3412 IH

1 of such designation by the export control re2 gime, the Secretary shall, with respect to the

3 commercial goods and technology which are

4 controlled under this section pursuant to the

5 agreement of that regime, change the designa6 tion of the country on the security control list

7 from a controlled country to a non-regime coun8 try. If the country also agrees to participate in

9 or be a cooperating country with respect to the

10 export control regime, the Secretary shall re11 move such country from the security control

12 list.

13 (B) CONTROLLED ENDUSERS.—In any

14 case in which a controlled enduser—

15 (i) ceases to engage in the design, de16 velopment, production, stockpiling, use, or

17 delivery of weapons of mass destruction; or

18 (ii) terminates activities that would

19 assist the capabilities of controlled coun20 tries in those activities described in para21 graph (4)(B);

22 such that the reasons for its being designated

23 a controlled enduser cease to exist, the Sec24 retary shall propose to the appropriate export

25 control regime to remove the enduser’s designa-
34

•HR 3412 IH

1 tion as a controlled enduser. Upon the removal

2 of such designation by the export control re3 gime, the Secretary shall, with respect to the

4 commercial goods and technology which are

5 controlled under this section pursuant to agree6 ment of that regime, remove that enduser from

7 the security control list.

8 (c) EXPORT LICENSING POLICIES FOR DESIGNATED

9 COUNTRIES AND CONTROLLED ENDUSERS.—

10 (1) EXPORTS TO CONTROLLED COUNTRIES AND

11 ENDUSERS.—

12 (A) IN GENERAL.—Except as provided in

13 subsection (d)(5), the Secretary shall require

14 authority or permission to export or reexport

15 goods and technology on the security control

16 list to controlled countries and controlled

17 endusers.

18 (B) PRESUMPTION OF DENIAL FOR CON19 TROLLED ENDUSERS.—Exports and reexports

20 to controlled endusers in controlled countries of

21 goods or technology on which controls are in ef22 fect under this section shall carry a presump23 tion of denial if such requirement is the policy

24 of the export control regime controlling the

25 goods or technology. In the negotiations re-
35

•HR 3412 IH

1 quired by subsection (d)(1), the Secretary shall

2 seek agreement on such a policy by every export

3 control regime.

4 (C) CASE-BY-CASE REVIEW FOR OTHER

5 ENDUSERS.—Exports and reexports to

6 endusers, other than controlled endusers, in

7 controlled countries of goods or technology on

8 which controls are in effect under this section

9 shall be subject to case-by-case license review by

10 the Secretary and shall be submitted for multi11 lateral review if required by the export control

12 regime controlling the goods or technology.

13 (2) EXPORTS TO NON-REGIME COUNTRIES.—

14 (A) IN GENERAL.—Except as provided in

15 subsection (d)(5), the Secretary may, in his or

16 her discretion, require authority or permission

17 to export or reexport to endusers in non-regime

18 countries goods or technology on which controls

19 are in effect under this section if—

20 (i) such requirement is the policy of

21 the export control regime controlling the

22 goods or technology, for exports of such

23 goods and technology to non-regime coun24 tries; and
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•HR 3412 IH

1 (ii) the Secretary has determined that

2 the unrestricted export of such goods or

3 technology to such non-regime country

4 would directly, substantially, and materi5 ally contribute to the military capability of

6 a controlled country or enduser described

7 in subsection (a)(1)(A), or to the capability

8 of a controlled country or enduser de9 scribed in subsection (a)(1)(B), through

10 the threat of diversion or other means.

11 (B) EXCEPTION.—Notwithstanding clause

12 (i) of subparagraph (A), for a period of 18

13 months beginning on the effective date of this

14 Act, the Secretary may require a license for the

15 export or reexport to any non-regime country of

16 any good or technology controlled under sub17 section (b)(2). During such period, the Sec18 retary shall engage in negotiations with other

19 members of the export control regime control20 ling the good or technology for the purpose of

21 developing a common list of controlled countries

22 and controlled endusers, and a common policy

23 on exports to non-regime countries. After the

24 end of such 18-month period, export controls on
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•HR 3412 IH

1 such good or technology may be imposed only

2 under subparagraph (A) or under section 5.

3 (C) LICENSING TREATMENT.—(i) Exports

4 and reexports to non-regime countries of goods

5 and technology on which controls are in effect

6 under this section shall be considered on a na7 tional discretion basis.

8 (ii) Exports to endusers in non-regime

9 countries other than controlled endusers shall

10 carry a presumption of approval.

11 (iii) Exports to controlled endusers in non12 regime countries shall be reviewed on a case-by13 case basis and shall be submitted for multilat14 eral review if required by the export control re15 gime controlling the good or technology.

16 (iv) The Secretary shall pursue negotia17 tions with countries participating in export con18 trol regimes to achieve a consistent and effec19 tive multilateral approach to exports to non-re20 gime countries.

21 (D) NEGOTIATIONS TO ENHANCE CO22 OPERATION.—The Secretary shall pursue nego23 tiations with non-regime countries regarding

24 their cooperation in restricting the export of

25 goods and technology consistent with the pur-
38

•HR 3412 IH

1 poses of those export control regimes controlling

2 such exports. The goal of such negotiations

3 shall be to produce agreements with such coun4 tries under which such countries impose export

5 restrictions consistent with the objectives set

6 forth in subsection (d)(1).

7 (E) REVIEW OF AGREEMENTS.—The Sec8 retary shall review annually any agreement

9 reached pursuant to subparagraph (D). If the

10 Secretary determines that a country is not ad11 hering to the terms of such an agreement with

12 the United States, the Secretary may restrict or

13 eliminate any preferential licensing treatment

14 for exports to that country provided under the

15 agreement and shall notify other members of

16 the appropriate export control regime of such

17 action.

18 (F) SANCTIONS.—If the Secretary deter19 mines that a non-regime country or an enduser

20 in a non-regime country is exporting to a con21 trolled country or controlled enduser goods or

22 technology on which controls are in effect under

23 this section, the Secretary may—

24 (i) suspend favorable licensing treat25 ment for such goods and technology to
39

•HR 3412 IH

1 such non-regime country or enduser in a

2 non-regime country;

3 (ii) propose to the other members of

4 the export control regime controlling the

5 goods or technology the suspension of fa6 vorable licensing treatment of the goods

7 and technology to such non-regime country

8 or enduser by all members of the regime;

9 and

10 (iii) consider applying United States

11 sanctions pursuant to section 8(d) to such

12 non-regime country or enduser.

13 (d) EXPORT CONTROL REGIMES AND LICENSING

14 POLICIES.—

15 (1) IN GENERAL.—For the purposes of creating

16 effective multilateral export controls and strengthen17 ing the controls imposed by export control regimes,

18 the Secretary shall, with respect to each export con19 trol regime, pursue negotiations with other members

20 of such regime to accomplish the following objec21 tives:

22 (A) No license requirement for exports and

23 reexports among members of the regime and to

24 countries who are cooperating countries with re25 spect to the regime.
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•HR 3412 IH

1 (B) Development of a common list of

2 goods and technology to which export controls

3 are applied, and a common list of countries and

4 endusers to which exports are controlled, by

5 members of the regime.

6 (C) Agreement on the same treatment, to

7 be applied by all members of the regime, of ex8 ports and reexports to members of the regime

9 cooperating countries, and non-regime coun10 tries, which could include multilateral review of

11 exports to controlled countries and controlled

12 endusers and multilateral sanctions to be ap13 plied to such countries and endusers, or to

14 members of the regime and cooperating coun15 tries who violate export controls imposed by the

16 regime.

17 (D) National procedures resulting in com18 parable implementation and enforcement of ex19 port controls among the members of the regime,

20 including laws providing appropriate civil and

21 criminal penalties and statutes of limitations

22 sufficient to deter potential violations.

23 (E) Periodic meetings of high-level rep24 resentatives of governments participating in the

25 regime for the purpose of coordinating national
41

•HR 3412 IH

1 export control policies and issuing policy guid2 ance for dissemination to exporters in partici3 pating countries.

4 (F) Establishment of procedures for regu5 lar consultation among members of the regime

6 on proposed export license applications that in7 cludes consultation with individuals with suffi8 cient technical expertise to assess the licensing

9 status of exports and to ensure the reliability of

10 endusers.

11 (G) Development of common procedures

12 for enforcing the export controls agreed upon

13 by the regime, including adequate training and

14 authority for enforcement officers to investigate

15 and prevent illegal exports.

16 (H) Development of a common system of

17 export control documentation to verify the

18 movement of goods and technology.

19 (I) Establishment of procedures for the co20 ordination and exchange of information con21 cerning violations of controls agreed to by the

22 regime.

23 (J) Establishment of procedures for the co24 ordination and sharing of intelligence informa-
42

•HR 3412 IH

1 tion on controlled countries and controlled

2 endusers.

3 (2) CERTIFICATION OF MULTILATERAL EXPORT

4 CONTROL REGIMES.—

5 (A) When the Secretary determines that

6 an existing export control regime has met the

7 objectives set forth in paragraph (1), the Sec8 retary shall certify such determination and pub9 lish such certification in the Federal Register,

10 and exports to all countries adhering to that re11 gime shall be subject to the licensing treatment

12 set forth in paragraph (5).

13 (B) COCOM shall be considered to have

14 met the objectives set forth in paragraph (1).

15 (3) NEW EXPORT CONTROL REGIMES.—No new

16 export control regime shall be entered into by the

17 United States until the President has submitted to

18 the appropriate committees in the House of Rep19 resentatives and the Senate and published in the

20 Federal Register, at least 90 days before the new re21 gime becomes effective, a report—

22 (A) certifying that the members of the new

23 regime represent all significant sources of sup24 ply for the goods and technology which are to

25 be controlled by the regime;
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•HR 3412 IH

1 (B) specifying the list of goods and tech2 nology to be controlled cooperatively by mem3 bers of the regime and the destinations to

4 which such goods and technology are to be con5 trolled; and

6 (C) certifying that such goods and tech7 nology are controllable and that licensing their

8 export would be effective in restricting the ca9 pabilities set forth in subsection (a)(1)(A) or

10 (B).

11 (4) FORMALIZATION OF REGIME CONTROLS.—

12 The Secretary shall pursue efforts to consolidate and

13 formalize existing export control regimes, such as

14 COCOM, the MTCR, the Australia Group, and the

15 Nuclear Suppliers Group, into a single, new, multi16 lateral entity for the coordination of export controls.

17 Until such new entity is formed, the Secretary shall

18 also pursue efforts to rationalize export controls

19 among the existing export control regimes, especially

20 with respect to coordinating the performance and

21 other identifying characteristics of goods and tech22 nologies which are controlled under such regimes.

23 (5) EXPORT LICENSING POLICIES TO COUN24 TRIES PARTICIPATING IN OR COOPERATING WITH

25 EXPORT CONTROL REGIMES.—
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•HR 3412 IH

1 (A) FAVORABLE LICENSING TREAT2 MENT.— Except as otherwise required by the

3 Atomic Energy Act of 1954, if an export con4 trol regime is certified under paragraph (2), no

5 authority or permission may be required for ex6 ports or reexports of goods and technology con7 trolled by such regime to or from members of

8 the regime or cooperating countries with respect

9 to such regime.

10 (B) EXEMPTION FROM SANCTIONS.—Sanc11 tions for violations of export controls may not

12 be imposed under section 8(d) on foreign per13 sons who are nationals of countries that are

14 members of an export control regime certified

15 under paragraph (2) or cooperating countries

16 with respect to such regime, to the extent pro17 vided in section 8(d)(5).

18 (C) EXCEPTION.—If the Secretary deter19 mines that a member of an export control re20 gime certified under paragraph (2), a cooperat21 ing country with respect to such regime, or an

22 enduser in a country that is such a regime

23 member or in such a cooperating country is en24 gaging in a pattern and practice of noncompli25 ance with controls agreed to by the regime, the
45

•HR 3412 IH

1 Secretary shall seek a similar determination by

2 the other members of the regime concerning

3 such noncompliance. If such a determination is

4 made, the Secretary shall propose the suspen5 sion of favorable licensing treatment of exports

6 and reexports to that noncomplying regime

7 member, cooperating country, or enduser by all

8 members of the regime during the period in

9 which that determination is in effect.

10 (D) NEW MEMBERS.—When a country

11 that is not a member of an export control re12 gime certified under paragraph (2) agrees to

13 the objectives and procedures of such regime

14 and has become a member of that regime, the

15 Secretary shall certify that this new member is

16 eligible for the licensing treatment set forth in

17 this paragraph, and shall publish such certifi18 cation in the Federal Register.

19 (6) TRANSITION PERIOD TO CERTIFIED EXPORT

20 CONTROL REGIMES.—For a period of 18 months be21 ginning on the effective date of this Act, the Sec22 retary shall apply the licensing policies set forth in

23 paragraph (5) to all countries who participate in or

24 are cooperating countries with respect to an export

25 control regime even if the Secretary has not certified
46

•HR 3412 IH

1 the regime under paragraph (2). After the expiration

2 of such 18-month period, if the Secretary fails to

3 certify an export control regime under paragraph

4 (2), the Secretary may—

5 (A) continue to apply the licensing policies

6 set forth in paragraph (5) if the negotiations

7 prescribed in paragraph (1) continue; or

8 (B) require authority or permission to ex9 port or reexport goods or technology on which

10 controls are in effect under this section to any

11 country that participates in or is a cooperating

12 country with respect to such export control re13 gime.

14 SEC. 5. EMERGENCY CONTROLS.

15 (a) AUTHORITY.—

16 (1) IN GENERAL.—In order to carry out the

17 policy set forth in section 2(b)(6), the President

18 may, in accordance with this section, prohibit or cur19 tail the export and reexport of any commercial goods

20 or technology subject to the jurisdiction of the Unit21 ed States to any country or enduser. The authority

22 to impose controls under this subsection shall be ex23 ercised by the Secretary, in consultation with other

24 members of the Commercial Export Control Policy

25 Committee established under section 6(b), and shall
47

•HR 3412 IH

1 be implemented by means of export licenses issued

2 by the Secretary.

3 (2) EXPIRATION OF AUTHORITY.—

4 (A) IN GENERAL.—Any emergency controls

5 imposed under this section shall expire 180

6 days after they are imposed, unless they are

7 terminated earlier by the President, or unless

8 they are extended, adopted as national security

9 controls under section 4, or included in a total

10 embargo described in subsection (b)(2) that is

11 imposed by the President under the Inter12 national Emergency Economic Powers Act, the

13 Trading with the Enemy Act or other provision

14 of law other than this Act, on all exports and

15 imports to a country. Any extension or subse16 quent extension of the emergency controls shall

17 be for a period of not more than 180 days each.

18 (B) EXCEPTION FOR MULTILATERAL

19 AGREEMENTS.—Subparagraph (A) shall not

20 apply to controls imposed by the President in

21 order to fulfill obligations of the United States

22 pursuant to a treaty to which the United States

23 is a party or pursuant to an agreement to im24 pose such controls multilaterally by the United

25 Nations or similar international or regional or-
48

•HR 3412 IH

1 ganization of which the United States is a

2 member. If such a treaty or agreement ceases

3 to be in effect, emergency controls imposed by

4 the President pursuant to such treaty or agree5 ment shall immediately cease to be in effect.

6 (3) CRITERIA.—The President may impose

7 emergency controls under this section only if the

8 President—

9 (A) determines that the emergency controls

10 are a necessary and appropriate policy response

11 to an immediate and extraordinary threat to the

12 national security or foreign policy of the United

13 States;

14 (B) determines that no other alternative

15 means can achieve the national security or for16 eign policy objectives of the United States with17 in a reasonable time frame;

18 (C) determines that the emergency controls

19 can reasonably be expected to achieve the in20 tended objective within 180 days after being im21 posed, after having taken into consideration

22 other factors, including the availability from

23 one or more countries of comparable goods and

24 technology to those on which the controls are

25 imposed;
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•HR 3412 IH

1 (D) determines that the United States has

2 the ability to enforce all aspects of the proposed

3 emergency controls effectively;

4 (E) determines that a period of time of not

5 more than 180 days is necessary for the United

6 States to obtain the agreement of other coun7 tries to adopt such controls so that such con8 trols may be imposed under section 4;

9 (F) commences, through the Secretary,

10 within 10 days after the imposition of the emer11 gency controls, negotiations with other coun12 tries to adopt the emergency controls so that

13 such controls may be imposed under section 4,

14 unless such emergency controls are imposed

15 under paragraph (2)(B); and

16 (G) consults with the Congress and sub17 mits the necessary report under paragraph (4).

18 (4) REQUIRED CONSULTATIONS.—

19 (A) IN GENERAL.—The President may im20 pose emergency controls under this section only

21 after consultation with industry under subpara22 graph (C), foreign countries under subpara23 graph (D), and the Congress, including the

24 Committee on Foreign Affairs of the House of
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•HR 3412 IH

1 Representatives and the Committee on Bank2 ing, Housing, and Urban Affairs of the Senate.

3 (B) LIMITATION.—The President may not

4 impose emergency controls under this section

5 until the President has submitted to the Con6 gress and published in the Federal Register a

7 report—

8 (i) specifying the purpose of the con9 trols;

10 (ii) specifying the determinations of

11 the President with respect to each of the

12 criteria set forth in paragraph (3), the

13 bases for such determinations, and the ad14 verse national security, foreign policy, and

15 economic consequences of the controls;

16 (iii) containing an analysis identifying

17 those commercial goods and technology

18 which must be controlled in order to

19 achieve the intended purpose of the emer20 gency controls, and describing the reasons

21 for selecting such items;

22 (iv) describing the nature, subjects,

23 and plans for the negotiations with other

24 countries required by paragraph (3)(F);
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•HR 3412 IH

1 (v) containing a thorough assessment

2 of the foreign availability of the commer3 cial goods and technology proposed for

4 control;

5 (vi) containing an analysis, based on

6 past experience with emergency controls

7 and based upon information on foreign

8 availability, of the extent to which the

9 emergency controls will be effective in

10 achieving the intended purpose;

11 (vii) incorporating an evaluation of

12 the impact of the controls on the export

13 performance of the United States, on the

14 competitive position of the United States

15 and United States industry in the inter16 national economy, on the international rep17 utation of the United States as a reliable

18 supplier of goods and technology, on the

19 economic well-being of individual United

20 States companies and their employees and

21 shareholders, their foreign investments,

22 and their joint ventures, and on public

23 health and safety;

24 (viii) specifying that the President has

25 determined that the emergency controls
52

•HR 3412 IH

1 can be expected to achieve the intended

2 purpose with reasonable certainty within

3 180 days after being imposed;

4 (ix) indicating the nature and results

5 of the alternative means attempted under

6 paragraph (3)(B);

7 (x) describing the results of the con8 sultations with industry required by sub9 paragraph (C) and with other countries re10 quired by subparagraph (D); and

11 (xi) describing the views of the Presi12 dent regarding the likelihood that all other

13 countries representing a source of supply

14 of the goods or technology on which the

15 controls are imposed will be willing to im16 pose comparable controls promptly.

17 (C) CONSULTATION WITH INDUSTRY.—The

18 Secretary shall consult with and seek advice

19 from affected United States industries and the

20 appropriate industry advisory committees estab21 lished under section 6(d) before imposing emer22 gency controls under this section. Such con23 sultation and advice shall be with respect to the

24 matters described in subparagraph (B), and
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•HR 3412 IH

1 such other matters as the Secretary considers

2 appropriate.

3 (D) CONSULTATION WITH OTHER COUN4 TRIES.—Before imposing emergency controls

5 under this section, the President shall consult

6 with such other countries as the President con7 siders appropriate with respect to the proposed

8 controls, including other countries that rep9 resent a significant source of supply of goods

10 and technology proposed for the controls. Pur11 suant to paragraph (3)(F), the President shall,

12 within 10 days after imposing emergency con13 trols, initiate negotiations with other supplier

14 countries of goods and technology on which the

15 controls are imposed, and other countries as the

16 President considers appropriate, with respect to

17 adopting the controls so that the controls may

18 be imposed under section 4.

19 (E) CONFIDENTIALITY.—To the extent

20 necessary to further the effectiveness of the

21 emergency controls, portions of the report re22 quired by subparagraph (B) may be submitted

23 to the Congress on a classified basis, and shall

24 be subject to the provisions of section 3(f), but

25 a non-classified version of such report shall be
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•HR 3412 IH

1 simultaneously made available to the public.

2 Each such report shall, at the time it is submit3 ted to the Congress, also be submitted to the

4 Comptroller General, who shall assess the re5 port’s full compliance with the purposes of this

6 subsection.

7 (5) EMERGENCY CONTROL LIST.—The Sec8 retary shall establish and maintain, as part of the

9 control index, a list comprised of any commercial

10 goods and technology on which emergency controls

11 are in effect under this section and, for each item

12 on the list, the specific countries or endusers to

13 which the controls apply. In addition to clearly iden14 tifying which commercial goods or technology are

15 subject to emergency controls to which specific coun16 tries or endusers, the list shall also indicate when

17 such controls are due to expire. Such list shall be re18 viewed and updated every 6 months for the purpose

19 of making such revisions as are necessary in order

20 to carry out this section.

21 (b) PROCEDURES AND LIMITATIONS ON EMERGENCY

22 CONTROLS.—

23 (1) IN GENERAL.—Not later than the end of

24 the 180-day period after emergency controls are im25 posed under subsection (a), the President shall—
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•HR 3412 IH

1 (A) terminate the emergency controls;

2 (B) adopt the emergency controls as na3 tional security controls under section 4;

4 (C) include the emergency controls in an

5 embargo described in paragraph (2) on all ex6 ports and imports that are imposed under the

7 International Emergency Economic Powers Act,

8 the Trading with the Enemy Act, or other pro9 vision of law; or

10 (D) extend the emergency controls under

11 subsection (c).

12 (2) IMPOSITION OF AN EMBARGO.—An embargo

13 under paragraph (1)(C) shall include the prohibition

14 of all exports to and imports from the country

15 against which the controls under this section were

16 imposed, except as provided in section 7(b)(6).

17 (3) CESSATION OF EMERGENCY CONTROLS.—

18 (A) IN GENERAL.— Emergency controls

19 imposed under this section on goods or tech20 nology shall cease to be in effect immediately

21 upon—

22 (i) the imposition of national security

23 controls under section 4 on the same goods

24 and technology to the country or enduser
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•HR 3412 IH

1 with respect to which the emergency con2 trols were imposed; or

3 (ii) the imposition, under the Inter4 national Emergency Economic Powers Act,

5 the Trading with the Enemy Act, or other

6 provision of law, of an embargo described

7 in paragraph (2).

8 (B) CONVERSION TO MULTILATERAL

9 AGREEMENTS.—If the President imposes emer10 gency controls on goods or technology to a

11 country or enduser under this section in order

12 to fulfill obligations of the United States pursu13 ant to a treaty to which the United States is a

14 party, or pursuant to an agreement to impose

15 such controls multilaterally by an international

16 organization of which the United States is a

17 member, any emergency controls imposed prior

18 thereto under this section on the same goods or

19 technology to the same country or enduser shall

20 immediately cease to be in effect.

21 (4) LIMITATIONS ON REIMPOSITION.—Emer22 gency controls which have ceased to be in effect

23 under paragraph (3) or subsection (a)(2), and which

24 have not been extended under subsection (c), may

25 not be reimposed by the President under subsection
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•HR 3412 IH

1 (a) for a period of 1 year beginning on the date on

2 which the original controls expire.

3 (c) EXTENSION OF EMERGENCY CONTROLS.—

4 (1) REPORT.—If the President decides to ex5 tend emergency controls imposed under subsection

6 (a), which are due to expire under subsection (a)(2),

7 the President shall, not later than 60 calendar days

8 before the expiration of such controls, transmit to

9 the Congress a report on the proposed extension,

10 setting forth the reasons for the proposed extension

11 in detail and specifying the period of time, which

12 may not exceed 180 days, for which the controls are

13 proposed to be extended. In particular, such report

14 shall specify in detail—

15 (A) the determinations of the President

16 with respect to each of the criteria set forth in

17 subsection (a)(3);

18 (B) the reasons why negotiations required

19 under subsection (a)(3)(F) failed to result in

20 the adoption of the emergency controls under

21 section 4, and the reasonable period of time the

22 President expects will be required to success23 fully conclude such negotiations;

24 (C) the reasons why a total embargo on all

25 exports and imports is not presently justified to
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1 achieve the national security or foreign policy

2 objectives of the United States; and

3 (D) information on each of the items set

4 forth in subsection (a)(4)(B).

5 (2) CONSIDERATION OF EXTENSION.—If the

6 Congress, not later than 60 calendar days after the

7 date of its receipt of the report under paragraph (1),

8 adopts a joint resolution pursuant to paragraph (3)

9 approving the extension of the emergency controls,

10 then such emergency controls shall remain in effect

11 for the period specified in the report or until termi12 nated by the President, whichever occurs first, but

13 in no case longer than 180 days after the date on

14 which the controls would otherwise expire under sub15 section (a)(2). If the Congress, within 60 calendar

16 days after the date of its receipt of such report, fails

17 to adopt a joint resolution approving the extension

18 of such controls, then such controls shall cease to be

19 effective upon the expiration of that 60-day period.

20 (3) JOINT RESOLUTIONS.—

21 (A) DEFINITION.—For purposes of this

22 paragraph, the term ‘‘joint resolution’’ means

23 only a joint resolution the matter after the re24 solving clause of which is as follows: ‘‘That,

25 pursuant to section 5(c) of the Commercial Ex-
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•HR 3412 IH

1 port Administration Act of 1993, the President

2 may extend emergency controls as specified in

3 the report submitted to the Congress on

4 lllllllllllll.’’, with the

5 blank space being filled with the appropriate

6 date.

7 (B) INTRODUCTION.—On the day on which

8 a report is submitted to the House of Rep9 resentatives and the Senate under paragraph

10 (1), a joint resolution with respect to the exten11 sion of controls specified in such report shall be

12 introduced (by request) in the House of Rep13 resentatives by the chairman of the Committee

14 on Foreign Affairs, for the chairman and the

15 ranking minority member of the Committee, or

16 by Members of the House designated by the

17 chairman and ranking minority member; and

18 shall be introduced (by request) in the Senate

19 by the majority leader of the Senate, for himself

20 and the minority leader of the Senate, or by

21 Members of the Senate designated by the ma22 jority leader and the minority leader of the Sen23 ate. If either House of Congress is not in ses24 sion on the day on which such a report is sub25 mitted, the joint resolution shall be introduced
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1 in that House, as provided for in the preceding

2 sentence, on the first day thereafter on which

3 that House is in session.

4 (C) COMMITTEE REFERRALS.—All joint

5 resolutions introduced in the House of Rep6 resentatives shall be referred to the appropriate

7 committee and all joint resolutions introduced

8 in the Senate shall be referred to the Commit9 tee on Banking, Housing, and Urban Affairs.

10 (D) DISCHARGE.—If the committee of ei11 ther House to which a joint resolution has been

12 referred has not reported the joint resolution by

13 the end of 30 calendar days after its referral,

14 the committee shall be discharged from further

15 consideration of the joint resolution or of any

16 other joint resolution introduced with respect to

17 the same matter.

18 (E) CONSIDERATION.—A joint resolution

19 under this paragraph shall be considered in the

20 Senate in accordance with the provisions of sec21 tion 601(b)(4) of the International Security As22 sistance and Arms Export Control Act of 1976.

23 For the purpose of expediting the consideration

24 and passage of joint resolutions reported or dis25 charged under this paragraph, it shall be in
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1 order for the Committee on Rules of the House

2 of Representatives to present for consideration

3 a resolution of the House of Representatives

4 providing procedures for the immediate consid5 eration of a joint resolution under this para6 graph which may be similar, if applicable, to

7 the procedures set forth in section 601(b)(4) of

8 the International Security Assistance and Arms

9 Export Control Act of 1976.

10 (F) DUPLICATIVE RESOLUTIONS.—In the

11 case of a joint resolution described in subpara12 graph (A), if, before the passage by one House

13 of a joint resolution of that House, that House

14 receives a resolution with respect to the same

15 matter from the other House, then—

16 (i) the procedure in that House shall

17 be the same as if no joint resolution had

18 been received from the other House; and

19 (ii) the vote on final passage shall be

20 on the joint resolution of the other House.

21 (4) RENEWAL OF CONTROLS.—If, upon the

22 expiration of the emergency controls extended

23 under this subsection, the President determines

24 that a further extension of emergency controls

25 for an additional period of time of not more
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•HR 3412 IH

1 than 180 calendar days is necessary, para2 graphs (1) through (3) shall apply to such fur3 ther extension.

4 ‘‘(d) EFFECT ON OTHER AUTHORITY.—

5 ‘‘(1) EMBARGO AUTHORITY.—Nothing in this

6 section shall be construed to limit the authority of

7 the President to impose an embargo on all exports

8 to, and imports from, a specific country (except for

9 exports of goods described in subparagraphs (A) and

10 (B) of section 7(b)(6)) under the International

11 Emergency Economic Powers Act, the Trading With

12 the Enemy Act, or other provision of law. In any

13 case in which the President exercises any such au14 thority to impose an embargo, the requirements of

15 this section shall not apply for so long as such em16 bargo is in effect.

17 (2) EFFECT ON EXISTING EMBARGOES.—(A)

18 Nothing in this section affects the authorities con19 ferred upon the President by section 5(b) of the

20 Trading With the Enemy Act, which were being ex21 ercised with respect to a country on July 1, 1977,

22 as a result of a national emergency declared by the

23 President before that date, and are being exercised

24 on the date of the enactment of this Act.
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1 (B) Nothing in this section affects the authori2 ties conferred upon the President by the Inter3 national Emergency Economic Powers Act or other

4 provision of law, which were being exercised with re5 spect to a country before the date of the enactment

6 of this Act as a result of a national emergency de7 clared by the President before that date, and are

8 being exercised with respect to such country on such

9 date of enactment.

10 SEC. 6. EXPORT CONTROL AUTHORITIES.

11 (a) EXPORT CONTROL AUTHORITY AND FUNC12 TIONS.—

13 (1) IN GENERAL.—Unless otherwise reserved to

14 the President or a department or agency outside the

15 Department of Commerce, all power, authority, and

16 discretion conferred by this Act shall be exercised by

17 the Secretary. The Secretary is responsible for all

18 export control functions required by this Act, subject

19 to subsection (d) of this section.

20 (2) DELEGATION.—The Secretary may delegate

21 any export control function under this Act to the Di22 rector of the Commercial Export Control Adminis23 tration appointed under subsection (c), or to any

24 other officer of the Department of Commerce.
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1 (3) TRANSFER OF LICENSING AND REGU2 LATORY FUNCTIONS.—In addition to the authorities

3 and responsibilities otherwise provided for in this

4 Act, there are hereby transferred to the Secretary

5 the following functions.

6 (A) TRANSFERS FROM THE DEPARTMENT

7 OF TREASURY.—There are hereby transferred

8 to the Secretary all export control and licensing

9 authorities and functions with respect to com10 mercial goods and technology, and related serv11 ices, exercised by the Office of Foreign Assets

12 Control of the Department of the Treasury, be13 fore the effective date of this Act, under—

14 (i) the International Emergency Eco15 nomic Powers Act;

16 (ii) the Trading With the Enemy Act;

17 (iii) section 504 of the International

18 Security Development and Cooperation Act

19 of 1985 (22 U.S.C. 2349aa–8);

20 (iv) the United Nations Participation

21 Act;

22 (v) the Comprehensive Anti-Apartheid

23 Act of 1986; and

24 (vi) any other provision of law which

25 authorizes the imposition by the United
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•HR 3412 IH

1 States of embargoes or economic sanctions

2 against foreign countries.

3 (B) TRANSFERS FROM THE NUCLEAR REG4 ULATORY COMMISSION.—There are hereby

5 transferred to the Secretary all export control

6 and licensing authorities and functions to the

7 extent such functions apply to commercial

8 goods and technology of the Nuclear Regulatory

9 Commission under—

10 (i) the Atomic Energy Act of 1954;

11 (ii) the Nuclear Non-Proliferation Act

12 of 1978; and

13 (iii) the Energy Reorganization Act of

14 1974.

15 (C) TRANSFERS FROM THE SECRETARY OF

16 ENERGY.—There are hereby transferred to the

17 Secretary all authorities and functions which

18 are exercised by the Secretary of Energy, before

19 the effective date of this Act, under—

20 (i) section 131 of the Atomic Energy

21 Act of 1954, relating to the entry into sub22 sequent arrangements; and

23 (ii) section 402(a) of the Nuclear

24 Non-Proliferation Act of 1978, relating to
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•HR 3412 IH

1 approval of enrichment after export of

2 source material or special nuclear material.

3 (D) MISCELLANEOUS TRANSFERS.—There

4 are hereby transferred to the Secretary such ex5 port licensing and related regulatory functions

6 and authorities not specifically or otherwise

7 vested or delegated by statute, as the Secretary,

8 in consultation with the Director of the Office

9 of Management and Budget, determines to be

10 appropriate.

11 (E) INCIDENTAL TRANSFERS.—The Direc12 tor of the Office of Management and Budget, in

13 consultation with the Secretary, shall make

14 such determinations as may be necessary with

15 regard to the transfer of functions under this

16 Act, to make such additional incidental disposi17 tions of assets, liabilities, contracts, property,

18 records, and unexpended balances of appropria19 tions, authorizations, allocations, and other

20 funds held, used, arising from, available to, or

21 to be made available in connection with the

22 functions transferred by this Act, as the Direc23 tor considers necessary to carry out this Act.

24 (F) EMPLOYEE TRANSFER PROVISIONS.—

25 The Secretary, in consultation with the head of
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•HR 3412 IH

1 any affected department or agency and the Di2 rector of the Office of Management and Budg3 et, is authorized to transfer to the Department

4 of Commerce, or from the Department of Com5 merce to another department or agency, any

6 Federal employees employed to carry out the li7 censing and regulatory functions required by

8 this Act. The Secretary is authorized to exer9 cise, with respect to such transferred Federal

10 employees, all authority available to the head of

11 the agency from which such Federal employees

12 are transferred. Such authority shall include,

13 but not be limited to, the authority to prescribe

14 regulations incident to the exercise of such au15 thority.

16 (4) PRESIDENTIAL DELEGATION OF AUTHOR17 ITY.—With respect to those powers, authorities, or

18 discretion reserved to the President by this Act, the

19 President may not delegate or transfer such power,

20 authority, or discretion to any official of any depart21 ment or agency the head of which is not appointed

22 by the President by and with the advice and consent

23 of the Senate.

24 (5) EXCLUSIVE JURISDICTION OF THE SEC25 RETARY OF ENERGY.—The Secretary of Energy
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•HR 3412 IH

1 shall have exclusive jurisdiction with respect to the

2 authorization under the first sentence of section 57b.

3 of the Atomic Energy Act of 1954, of all activities

4 constituting the direct or indirect engagement in the

5 production of special nuclear material outside the

6 United States. Nothing in this Act shall be con7 strued to give the Secretary dual or concurrent juris8 diction with the Secretary of Energy with respect to

9 such activities, including the export or reexport of

10 technology related to nuclear fuel cycle facilities or

11 activities, or to expand the jurisdiction that the Sec12 retary of Energy exercised under 57b. of the Atomic

13 Energy Act of 1954 before the effective date of this

14 Act.

15 (b) COMMERCIAL EXPORT CONTROL POLICY COM16 MITTEE.—

17 (1) ESTABLISHMENT.—There is established a

18 Commercial Export Control Policy Committee.

19 (2) FUNCTIONS.—The Committee shall—

20 (A) provide policy guidance and advice to

21 the Secretary on commercial export control is22 sues;

23 (B) review policy recommendations pro24 posed by the Secretary and other members of

25 the Committee; and
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•HR 3412 IH

1 (C) receive policy recommendations from

2 other agencies and resolve any policy disputes

3 among departments and agencies under this

4 Act.

5 (3) MEMBERSHIP.—The Committee shall be

6 comprised of —

7 (A) the Secretary;

8 (B) the Secretary of Defense;

9 (C) the Secretary of Energy;

10 (D) the Secretary of State;

11 (E) the National Security Adviser;

12 (F) the National Economic Adviser; and

13 (G) the Director of the Commercial Export

14 Control Administration.

15 (4) CHAIR.—The Committee shall be jointly

16 chaired by the National Economic Adviser and the

17 National Security Adviser.

18 (5) DELEGATION; OTHER REPRESENTATIVES.—

19 A member of the Committee under paragraph (3)

20 may designate the deputy head of his or her depart21 ment or agency to serve in his or her absence as a

22 member of the Committee, but this authority may

23 not be delegated to any other individual. The Chairs

24 may also invite the temporary participation in the

25 Committee’s meetings of representatives from other
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1 offices and agencies as appropriate to the issues

2 under consideration.

3 (6) MEETINGS.—The Secretary or either Chair

4 of the Committee may call a meeting of the Commit5 tee. Meetings shall not be subject to section 552b of

6 title 5, United States Code.

7 (c) THE COMMERCIAL EXPORT CONTROL ADMINIS8 TRATION.—

9 (1) ESTABLISHMENT.—There is established in

10 the Department of Commerce the Commercial Ex11 port Control Administration. CECA shall be the

12 agency responsible for the implementation of export

13 controls imposed under this Act.

14 (2) PRINCIPAL OFFICERS.—

15 (A) DIRECTOR.—There shall be at the

16 head of CECA a Director, who shall be ap17 pointed by the President, by and with the ad18 vice and consent of the Senate. The Director,

19 under the supervision and direction of the Sec20 retary, shall perform such administrative and

21 executive functions as the Secretary shall dele22 gate, including—

23 (i) the formulation of United States

24 export control and technology transfer poli-
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•HR 3412 IH

1 cies with respect to commercial goods and

2 technology;

3 (ii) the implementation of export con4 trol policies through the administration of

5 licenses for exports and reexports of com6 mercial goods and technology, and the en7 forcement of export controls, to the extent

8 provided in this Act;

9 (iii) the establishment of the control

10 index, and the development of proposals

11 for revisions of export control lists of ex12 port control regimes;

13 (iv) the conduct of bilateral and multi14 lateral negotiations relating to export con15 trols of export control regimes and emer16 gency controls under section 5;

17 (v) the distribution of duties among

18 the personnel, administrative units, and of19 fices of CECA; and

20 (vi) such other matters as the Sec21 retary may specify.

22 (B) DEPUTY DIRECTOR.—The Director

23 shall be assisted by a Deputy Director, who

24 shall be appointed by the President, by and

25 with the advice and consent of the Senate. The
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•HR 3412 IH

1 Deputy Director shall supervise and coordinate

2 the operations of CECA.

3 (C) ASSISTANT DIRECTOR FOR EXPORT

4 CONTROL.—The Assistant Director for Export

5 Control of CECA shall assist the Director and

6 shall carry out CECA’s responsibilities with re7 spect to—

8 (i) processing export license applica9 tions;

10 (ii) emergency control policies;

11 (iii) the review and revision of the

12 control index;

13 (iv) foreign availability determinations

14 under section 3(g);

15 (v) requests by exporters for the clas16 sification of commodities on the control

17 index;

18 (vi) coordinating the activities of the

19 industry advisory committees appointed

20 under subsection (d);

21 (vii) export control functions and re22 sponsibilities transferred under subsection

23 (a)(3); and

24 (viii) such other matters as the Direc25 tor may specify.
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•HR 3412 IH

1 (D) ASSISTANT DIRECTOR FOR NON2 PROLIFERATION.—The Assistant Director for

3 Nonproliferation of CECA shall carry out

4 CECA’s responsibilities with respect to policy

5 development on—

6 (i) export and reexport controls under

7 the MTCR;

8 (ii) chemical and biological weapons

9 export and reexport controls imposed pur10 suant to the agreement of the Australia

11 Group;

12 (iii) export and reexport controls on

13 goods and technology imposed pursuant to

14 section 309(c) of the Nuclear Non-Pro15 liferation Act of 1978, and proliferation is16 sues of the Nuclear Suppliers Group;

17 (iv) the designation of controlled

18 countries and controlled endusers for pur19 poses of restricting the capabilities de20 scribed in section 4(a)(1)(B); and

21 (v) such other matters as the Director

22 may specify.

23 (E) ASSISTANT DIRECTOR FOR SECURITY

24 AND INTELLIGENCE.—The Assistant Director

25 for Security and Intelligence of CECA shall
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•HR 3412 IH

1 carry out CECA’s responsibilities with respect

2 to—

3 (i) coordination and liaison with the

4 Department of Defense, the Armed Forces

5 of the United States, and the intelligence

6 community;

7 (ii) development and maintenance of

8 information on enduser reliability, includ9 ing conducting outside the United States

10 prelicense investigations and post-shipment

11 verifications of items licensed for export;

12 and

13 (iii) such other matters as the Direc14 tor may specify.

15 (F) ASSISTANT DIRECTOR FOR ENFORCE16 MENT AND COMPLIANCE.—The Assistant Direc17 tor for Enforcement and Compliance of CECA

18 shall carry out CECA’s responsibilities with re19 spect to—

20 (i) the enforcement and compliance

21 duties of CECA, as provided in subsection

22 (e); and

23 (ii) coordination with the Commis24 sioner of Customs in the enforcement of

25 this Act.
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1 (G) CHIEF NEGOTIATOR.—The Chief Ne2 gotiator of CECA shall hold the rank of ambas3 sador, and shall be responsible for the develop4 ment, coordination, and conduct of all negotia5 tions regarding export control regimes, includ6 ing negotiations related to COCOM, the Aus7 tralia Group, the Nuclear Suppliers Group, and

8 the MTCR, negotiations described in section

9 4(c)(2)(D), and negotiations required under

10 section 5 regarding emergency controls.

11 (H) APPOINTMENTS.—The officers de12 scribed in subparagraphs (C), (D), (E), (F),

13 and (G) shall each be appointed by the Presi14 dent, by and with the advice and consent of the

15 Senate.

16 (d) INDUSTRY ADVISORY COMMITTEES.—

17 (1) TECHNICAL ADVICE AND SUPPORT.—

18 (A) IN GENERAL.—Upon written request

19 by representatives of a substantial segment of

20 any industry that produces goods or technology

21 subject to export controls under this Act, the

22 Secretary shall appoint an industry advisory

23 committee for any such goods or technology

24 that the Secretary determines are difficult to

25 evaluate because of questions concerning tech-
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•HR 3412 IH

1 nical matters, worldwide availability and actual

2 utilization of goods and technology, or licensing

3 procedures.

4 (B) COMPOSITION.—Each such committee

5 shall consist of representatives of United States

6 industry and the United States Government. No

7 person serving on any such committee who is a

8 representative of industry shall serve on such

9 committee for more than 4 consecutive years.

10 (C) CONSULTATION.—The Secretary and

11 the Committee shall consult with appropriate

12 industry advisory committees with respect to

13 questions involving—

14 (i) technical matters, including licens15 ing procedures;

16 (ii) worldwide availability and utiliza17 tion of controlled goods and technology;

18 (iii) revisions of the control index, in19 cluding proposed revisions of export control

20 regime agreements;

21 (iv) the issuance of regulations;

22 (v) gathering of information from in23 dustry on illegal sales and diversion of

24 technology in furtherance of the enforce25 ment of this Act; and
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1 (vi) any other questions that the Sec2 retary considers appropriate.

3 Members of the public shall be given a reason4 able opportunity, under regulations prescribed

5 by the Secretary, to present evidence to any in6 dustry advisory committee.

7 (D) MULTILATERAL NEGOTIATIONS.—The

8 Secretary may include industry representatives

9 from appropriate industry advisory committees

10 in the United States delegations to export con11 trol regime negotiations.

12 (E) EXPENSES.—Upon the request of any

13 member of an industry advisory committee, the

14 Secretary may reimburse such member for trav15 el, subsistence, and other necessary expenses in16 curred by such member in connection with the

17 duties of such member on such committee.

18 (F) CHAIRPERSON; MEETINGS.—Each in19 dustry advisory committee shall elect a chair20 person (who may not be an officer or employee

21 of the United States Government), and shall

22 meet at least every 3 months at the call of the

23 chairperson unless the chairperson determines,

24 in consultation with the other members of the
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1 committee, that such a meeting is not necessary

2 to achieve the purposes of this subsection.

3 (G) DURATION.—Each industry advisory

4 committee shall be terminated after a period of

5 2 years, unless extended by the Secretary for

6 one additional 2-year period.

7 (H) AGENCY DISCLOSURES.—The Sec8 retary, in conjunction with other departments

9 and agencies participating in the administration

10 of this Act, shall disclose to each industry advi11 sory committee adequate information, consist12 ent with national security, necessary for such

13 committee to discharge its duties.

14 (I) CERTIFICATION OF FOREIGN AVAIL15 ABILITY.—If an industry advisory committee

16 certifies to the Secretary that any of the goods

17 or technology with respect to which such com18 mittee was appointed meet the foreign availabil19 ity requirements of section 3(g), the Secretary

20 shall refer the matter to the International

21 Trade Commission which shall make a foreign

22 availability assessment of such goods or tech23 nology under such section and shall submit a

24 report on such foreign availability to the indus25 try advisory committee and the Secretary.
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1 (2) POLICY ADVICE.—The Secretary shall ap2 point a group of knowledgeable individuals from

3 businesses affected by export controls to provide ad4 vice to the Secretary and the Committee on export

5 control policy issues. The chairperson of such group

6 may not be a member of the Committee, but shall

7 represent industry advisory committees regarding re8 view of control lists and export control regime pro9 posals.

10 (e) ENFORCEMENT AUTHORITY.—

11 (1) GENERAL AUTHORITIES SHARED BY COM12 MERCE AND CUSTOMS.—To the extent necessary or

13 appropriate to the enforcement of this Act or to the

14 imposition of any penalty, forfeiture, or liability aris15 ing under this Act, the Secretary and the Commis16 sioner of Customs (and officers or employees specifi17 cally designated by either the Secretary or the Com18 missioner) may—

19 (A) require reports or the keeping of

20 records by any person;

21 (B) take the sworn testimony of any per22 son;

23 (C) administer oaths or affirmations; and

24 (D) by subpoena, require any person to ap25 pear and testify or to appear and produce
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•HR 3412 IH

1 books, records, and other writings, or both, and

2 to inspect the books, records and other writings,

3 premises, or property of any person.

4 In the case of contumacy by, or refusal to obey a

5 subpoena issued to any person under this paragraph,

6 a district court of the United States, after notice to

7 any such person and a hearing, shall have jurisdic8 tion to issue an order requiring such person to ap9 pear and give testimony or to appear and produce

10 books, records, and other writings, or both, and any

11 failure to obey such order of the court may be pun12 ished by such court as a contempt thereof.

13 (2) ENFORCEMENT AUTHORITY OF THE DE14 PARTMENT OF COMMERCE.—

15 (A) IN GENERAL.—Subject to subpara16 graph (B), the Secretary shall have the respon17 sibility for investigations conducted within the

18 United States in the enforcement of this Act. In

19 the enforcement of this Act, the Secretary is

20 authorized to search, detain (after search), and

21 seize goods or technology at those places within

22 the United States other than those ports speci23 fied in paragraph (3)(A). The search, detention

24 (after search), or seizure of goods and tech25 nology at those ports and places specified in
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•HR 3412 IH

1 paragraph (3)(A) may be conducted by employ2 ees of the Department of Commerce designated

3 by the Secretary with the concurrence of the

4 Commissioner of Customs or a person des5 ignated by the Commissioner.

6 (B) OTHER AUTHORIZED ACTIONS.—The

7 Secretary may designate employees under the

8 direction of the Assistant Director for Enforce9 ment and Compliance of CECA, in carrying out

10 enforcement authority under this Act, to—

11 (i) execute any warrant or other proc12 ess issued by a court or officer with com13 petent jurisdiction with respect to the en14 forcement of this Act;

15 (ii) make arrests without warrant for

16 any violation of this Act committed in his

17 or her presence or view, or if the officer or

18 employee has probable cause to believe that

19 the person to be arrested has committed or

20 is committing such a violation of this Act;

21 and

22 (iii) carry firearms in carrying out

23 any activity described in clause (i) or (ii).

24 (3) ENFORCEMENT AUTHORITY OF THE COM25 MISSIONER OF CUSTOMS.—
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1 (A) IN GENERAL.—Subject to subpara2 graph (B), the United States Customs Service

3 is authorized, in the enforcement of this Act, to

4 make investigations outside of the United

5 States, and to search, detain (after search), and

6 seize goods or technology at those ports of

7 entry to or exit from the United States where

8 officers of the Customs Service are authorized

9 by law to conduct such searches, detentions,

10 and seizures, and at those places outside the

11 United States where the Customs Service, pur12 suant to agreements or other arrangements

13 with other countries, is authorized to perform

14 enforcement activities.

15 (B) OTHER AUTHORIZED ACTIONS.—An

16 officer of the United States Customs Service, in

17 carrying out enforcement authority under this

18 Act, may—

19 (i) stop, search, and examine a vehi20 cle, vessel, aircraft, or person on which or

21 whom such officer has reasonable cause to

22 suspect there are any goods or technology

23 that has been, is being, or is about to be

24 exported from the United States in viola25 tion of this Act;
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1 (ii) search any package or container

2 in which such officer has reasonable cause

3 to suspect there are any goods or tech4 nology that has been, is being, or is about

5 to be exported from the United States in

6 violation of this Act;

7 (iii) detain (after search) or seize and

8 secure for trial any goods or technology on

9 or about such vehicle, vessel, aircraft, or

10 person, or in such package or container, if

11 such officer has probable cause to believe

12 the goods or technology has been, is being,

13 or is about to be exported from the United

14 States in violation of this Act; and

15 (iv) make arrests without warrant for

16 any violation of this Act committed in the

17 officer’s presence or view or if the officer

18 has probable cause to believe that the per19 son to be arrested has committed or is

20 committing such a violation.

21 The arrest authority conferred by clause (iv) is in

22 addition to any arrest authority provided under

23 other laws.

24 (4) OTHER ENFORCEMENT PROVISIONS.—
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1 (A) REFERRAL OF CASES.—All cases in2 volving violations of this Act shall be referred to

3 the Secretary for purposes of determining civil

4 penalties and administrative sanctions under

5 section 8, or to the Attorney General for crimi6 nal action in accordance with this Act.

7 (B) PUBLICATION OF PROCEDURES.—The

8 Secretary, with the concurrence of the Sec9 retary of the Treasury, shall publish in the Fed10 eral Register procedures setting forth, in ac11 cordance with this subsection, the responsibil12 ities of the Department of Commerce and the

13 United States Customs Service in the enforce14 ment of this Act.

15 (C) INFORMATION SHARING.—The Sec16 retary, with the concurrence of the Secretary of

17 the Treasury, may publish procedures for the

18 sharing of information in accordance with sec19 tion 3(g), and procedures for the submission to

20 the appropriate departments and agencies by

21 private persons of information relating to the

22 enforcement of this Act.

23 (D) REFERENCES.—For purposes of this

24 section, a reference to the enforcement of this

25 Act or to a violation of this Act includes a ref-
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1 erence to the enforcement or a violation of any

2 regulation, order, or license issued under this

3 Act.

4 (5) IMMUNITY.—No person shall be excused

5 from complying with any requirements under this

6 section because of an assertion of a privilege against

7 self-incrimination, but the immunity provisions of

8 section 6002 of title 18, United States Code, shall

9 apply with respect to any individual who specifically

10 claims such privilege.

11 SEC. 7. COMMERCIAL EXPORT LICENSES AND PROCESSING

12 PROCEDURES.

13 (a) RESPONSIBILITY OF THE SECRETARY.—

14 (1) IN GENERAL.—The Secretary is responsible

15 for all export licensing functions required by this

16 Act. All determinations with respect to any export li17 cense application shall be made by the Secretary,

18 subject to the procedures provided in this section.

19 (2) REFERRAL TO OTHER DEPARTMENTS OR

20 AGENCIES.—The Secretary may seek information

21 and recommendations from any other department or

22 agency of the United States on export license appli23 cations, in accordance with the procedures provided

24 in subsection (c)(2). A department or agency review25 ing an export license application referred by the Sec-
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1 retary shall cooperate fully in providing such infor2 mation or recommendations. The recommendations

3 made by other departments or agencies shall not be

4 binding on the Secretary in making determinations

5 on export license applications under this section.

6 (b) COMMERCIAL EXPORT LICENSES.—

7 (1) TYPES OF COMMERCIAL EXPORT LI8 CENSES.—Under such conditions as the Secretary

9 may impose, consistent with the provisions of this

10 Act, the Secretary may require the following types of

11 licenses for exports and reexports of commercial

12 goods and technology controlled under this Act:

13 (A) SPECIFIC EXPORTS AND REEX14 PORTS.—An individual validated license, au15 thorizing a specific export or reexport.

16 (B) MULTIPLE EXPORTS AND REEX17 PORTS.—Validated licenses authorizing multiple

18 exports or reexports, in lieu of an individual

19 validated license for each such export or reex20 port.

21 (C) TERMS AND CONDITIONS.—(i) The

22 Secretary shall grant a license under this para23 graph on the basis of approval of the appli24 cant’s systems of control for the commercial

25 goods and technology to be exported. The Sec-
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1 retary and, at the request of the Secretary, the

2 Commissioner of Customs, shall perform peri3 odic reviews of license applicants and their com4 pliance with the terms of licenses issued under

5 this Act. In the case of a license issued under

6 subparagraph (B), the Secretary shall perform

7 periodic audits of license holders in order to as8 sure the integrity and effectiveness of the li9 censing procedures under this section that

10 apply to such licenses.

11 (ii) Requirements for the redesign,

12 reengineering, or substantial modification of

13 standard product models or configurations, and

14 similar requirements shall not be imposed under

15 this Act before any export license application is

16 approved for the export or reexport of commer17 cial goods or technology to which export or re18 export controls imposed pursuant to an export

19 control regime apply if such goods or tech20 nology are intended for civil end uses, unless

21 such export control regime agrees to such re22 quirements.

23 (2) AUTHORIZATION FOR TECHNICAL DATA.—A

24 validated license authorizing the export or reexport

25 of any commercial goods or technology under this
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1 Act shall also authorize the export or reexport of op2 eration technical data related to such goods or tech3 nology, whether or not such data is specifically ref4 erenced in the license or license application, if the

5 technical level of the data does not exceed the level

6 reasonably necessary to install, repair, maintain, in7 spect, operate, or use the goods or technology.

8 (3) REPLACEMENT PARTS.—The Secretary

9 shall not require an individual validated license for

10 replacement parts that are exported or reexported to

11 replace on a one-for-one basis parts that were in a

12 good that has been lawfully exported from the Unit13 ed States.

14 (4) INCORPORATED GOODS OR TECHNOLOGY.—

15 (A) GOODS CONTAINING CONTROLLED

16 PARTS AND COMPONENTS.—No license may be

17 required under this Act to export a commercial

18 good solely because the good contains parts or

19 components the export of which is controlled

20 under this Act if such parts or components—

21 (i) are essential to the functioning of

22 the good;

23 (ii) are customarily included in sales

24 of the good in countries other than con25 trolled countries; and
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1 (iii) comprise 25 percent or less of the

2 total value of the good.

3 (B) REEXPORTS.—Except as provided in

4 subparagraph (C), no authority or permission

5 may be required under this Act to reexport,

6 from any country that is not a member of, or

7 a cooperating country with respect to, an export

8 control regime certified under section 4(d)(2),

9 of any commercial good or technology the ex10 port of which is controlled under section 4 when

11 the good or technology to be reexported is in12 corporated in another good or technology in

13 that country, and—

14 (i) the value of the commercial good

15 or technology the export of which is con16 trolled under this Act is 25 percent or less

17 of the total value of the good or technology

18 into which it is incorporated; or

19 (ii) the export of such commercial

20 good or technology from the United States

21 to the destination or enduser of the pro22 posed reexport would require only notifica23 tion to the participating governments of

24 the appropriate export control regime.
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1 (C) EMERGENCY CONTROLS.—No author2 ity or permission may be required to reexport

3 from any country a commercial good or tech4 nology the export of which is controlled under

5 section 5 when the good or technology to be re6 exported is incorporated in another good or

7 technology in that country and the value of the

8 good or technology controlled under section 5 is

9 10 percent or less of the total value of the good

10 or technology into which it is incorporated.

11 (5) EXISTING CONTRACTS AND LICENSES.—

12 (A) IN GENERAL.—The President may not,

13 under this Act, prohibit the export or reexport

14 of commercial goods or technology—

15 (i) in performance of a contract,

16 agreement, or other contractual commit17 ment entered into before the effective date

18 of export or reexport controls imposed

19 under this Act on such goods or tech20 nology, or the date on which the President

21 reports to the Congress under section

22 (5)(a)(4)(B) the President’s intention to

23 impose emergency controls on the export

24 or reexport of such goods or technology, or
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1 (ii) under a validated license or other

2 authorization issued under this Act.

3 (B) EXCEPTION.—The prohibition in sub4 paragraph (A) shall not apply if the President

5 determines and certifies to the Congress that—

6 (i) a breach of the peace poses a seri7 ous and direct threat to the strategic inter8 ests of the United States;

9 (ii) the prohibition or curtailment of

10 exports or reexports (as the case may be)

11 under each such contract, agreement, com12 mitment, license, or authorization will be

13 directly instrumental in remedying the sit14 uation posing the direct threat; and

15 (iii) such prohibition or curtailment

16 will continue only as long as the direct

17 threat persists.

18 (6) EXCLUSION FOR MEDICINE AND MEDICAL

19 SUPPLIES AND FOR DONATIONS.—This Act does not

20 authorize controls on—

21 (A) medicine or medical supplies; or

22 (B) donations of goods (including, but not

23 limited to, food, educational materials, seeds

24 and hand tools, medicines and medical supplies,

25 water resources equipment, clothing and shelter
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1 materials, and basic household supplies) that

2 are intended to meet basic human needs.

3 (7) PROHIBITION OF FEES FOR PROCESSING

4 EXPORT LICENSE APPLICATIONS.—No fee may be

5 charged in connection with the submission or proc6 essing of an export license application under this

7 Act.

8 (c) PROCEDURES FOR PROCESSING EXPORT LI9 CENSE APPLICATIONS.—

10 (1) INITIAL SCREENING.—All export license ap11 plications required under this Act shall be submitted

12 by the applicant to the Secretary. Not more than 10

13 days after the date on which any export license ap14 plication is submitted to the Secretary, the Secretary

15 shall—

16 (A) send the applicant an acknowledgment

17 of the receipt of the application and the date of

18 the receipt;

19 (B) submit to the applicant a written de20 scription of the procedures required by this sec21 tion, the responsibilities of the Secretary with

22 respect to the application, and the rights of the

23 applicant;

24 (C) return the application without action if

25 the application is improperly completed or if ad-
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1 ditional information is required, with sufficient

2 information to permit the application to be

3 properly resubmitted, in which case, if such ap4 plication is resubmitted, it shall be treated as a

5 new application for the purpose of calculating

6 the time periods prescribed in this subsection;

7 and

8 (D) determine whether it is necessary to

9 submit the application to a multilateral review

10 process pursuant to an export control regime

11 and, if so, inform the applicant of such require12 ment.

13 (2) REFERRAL.—If the Secretary decides to

14 refer an export license application to any other de15 partment or agency for a recommendation under

16 subsection (a)(2), the Secretary shall, within 5 days

17 after receiving the application, refer the application

18 concurrently to all such departments or agencies. A

19 department or agency reviewing an export license

20 application referred by the Secretary shall have 15

21 days in which to submit to the Secretary its rec22 ommendations on the application. Any department

23 or agency which does not submit its recommenda24 tions within that 15-day period shall be deemed by
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1 the Secretary to have no objection to the approval of

2 such application.

3 (3) ACTION BY THE SECRETARY.—Subject to

4 paragraph (6), 30 days after the date of formal fil5 ing with the Secretary of an export license applica6 tion, a license for the transaction specified in the ap7 plication shall become valid and effective and the

8 goods or technology involved are authorized for ex9 port or reexport pursuant to such license, unless—

10 (A) the application has been otherwise ap11 proved by the Secretary, in which case it shall

12 be valid and effective according to the terms of

13 the approval;

14 (B) the application has been denied by the

15 Secretary under this section and the applicant

16 has been so informed; or

17 (C) the Secretary requires additional time,

18 not to exceed 30 days, for matters related to

19 the consideration of the export license applica20 tion, including, but not limited to, performing

21 pre-license investigations and obtaining govern22 ment-to-government assurances with respect to

23 reexports or other matters, and so informs the

24 applicant.
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1 In a case in which subparagraph (C) applies, at the

2 end of the 30-day period described in such subpara3 graph, the license for the transaction specified in the

4 application shall become valid and effective and the

5 goods and technology are authorized for export or

6 reexport pursuant to such license, unless subpara7 graph (A) or (B) applies during such 30-day period.

8 (4) ACTION UPON DENIAL.—In cases in which

9 the Secretary has determined that a license applica10 tion should be denied, the applicant shall be in11 formed in writing, not later than 5 days after such

12 determination is made, of—

13 (A) the determination;

14 (B) the statutory basis for the proposed

15 denial;

16 (C) the reasons for such denial, with ref17 erences to the criteria set forth in sections 4

18 and 5;

19 (D) what, if any, modifications in, or re20 strictions on, the goods or technology for which

21 the license was sought would allow the export

22 or reexport of the goods or technology to be

23 compatible with controls imposed under this

24 Act;
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1 (E) which officers and employees of the

2 Department of Commerce who are familiar with

3 the application will be made reasonably avail4 able to the applicant for considerations with re5 gard to such modifications or restrictions, if ap6 propriate;

7 (F) to the extent consistent with the na8 tional security and foreign policy of the United

9 States, the specific considerations which led to

10 the determination to deny the application; and

11 (G) the availability of appeal procedures.

12 The Secretary shall allow the applicant not less than

13 30 days to respond to the Secretary’s determination

14 before the license application is denied. If any deci15 sion on a license application is deferred inconsistent

16 with the provisions of this subsection, the applicant

17 shall be so informed in writing not more than 5 days

18 after such deferral.

19 (5) RECORDKEEPING.—The Secretary shall

20 make and keep records of all advice and rec21 ommendations given by Federal departments and

22 agencies, and decisions made by the Department of

23 Commerce, in connection with any export license ap24 plication or revision of an export license application
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1 under this Act, including the factual and analytical

2 basis of the advice, recommendations, or decisions.

3 (6) MULTILATERAL CONTROLS.—

4 (A) NOTICE OF MULTILATERAL REVIEW.—

5 In any case in which an export license applica6 tion that has been finally approved is required

7 to be submitted to a multilateral review process

8 pursuant to an export control regime, the li9 cense shall not be issued under paragraph (3),

10 but the Secretary shall notify the applicant of

11 the approval of the application (and the date of

12 such approval) by the Secretary subject to such

13 multilateral review. The license shall be issued

14 upon approval of the application under such

15 multilateral review.

16 (B) ISSUANCE OF LICENSE AFTER 30

17 DAYS.—If such multilateral review has not re18 sulted in a determination with respect to the

19 application within 30 days after the application

20 is approved, the Secretary’s approval of the li21 cense shall be final and the license shall be is22 sued, unless a longer review period is specifi23 cally required by the established procedures of

24 the applicable export control regime.
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1 (7) CHANGES IN REQUIREMENTS FOR APPLICA2 TIONS.—Except as provided in paragraph (1)(C), in

3 any case in which, after an export license application

4 is submitted, the Secretary changes the require5 ments for such a license application, the Secretary

6 may request appropriate additional information of

7 the applicant, but the Secretary may not return the

8 application to the applicant without action because it

9 fails to meet the changed requirements.

10 (d) APPEAL AND COURT ACTIONS.—

11 (1) IN GENERAL.—The Secretary shall establish

12 appropriate procedures for any applicant to appeal

13 to the Secretary the denial of an export license ap14 plication under this Act.

15 (2) PUBLICATION AND INDEXING OF APPEAL

16 DECISIONS.—The Secretary shall, to the greatest ex17 tent practicable, taking into account restrictions on

18 the disclosure of classified or confidential informa19 tion, publish in the Federal Register and index deci20 sions on appeals of license denials under paragraph

21 (1).

22 (3) TIME DELAY.—In any case in which any ac23 tion prescribed in this section is not taken on an ex24 port license application within the time periods es25 tablished by subsection (c) (except in the case of a
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1 time period extended under subsection (c)(3)(C) of

2 which the applicant is notified), the applicant may

3 file a petition with the Secretary requesting compli4 ance with the requirements of subsection (c). When

5 such petition is filed, the Secretary shall take imme6 diate steps to correct the situation giving rise to the

7 petition and shall immediately notify the applicant of

8 such steps.

9 (4) ACTION ON PETITIONS.—If, within 20 days

10 after a petition is filed under paragraph (3), the

11 processing of the application has not been brought

12 into conformity with the requirements of subsection

13 (c), or the application has been brought into con14 formity with such requirements but the Secretary

15 has not so notified the applicant, the applicant may

16 bring an action in an appropriate United States dis17 trict court for a restraining order, a temporary or

18 permanent injunction, or other appropriate relief, to

19 require compliance with the requirements of sub20 section (c). The United States district courts shall

21 have jurisdiction to provide such relief, as appro22 priate.

23 (5) FINAL ORDERS; APPEAL.—The determina24 tion of the Secretary on appeals under this sub-
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1 section shall be final and may be appealed in accord2 ance with section 8(c).

3 (e) OTHER INQUIRIES.—

4 (1) CLASSIFICATION REQUESTS.—In any case

5 in which the Secretary receives a written request

6 asking for the proper classification of a good or

7 technology on the control index, the Secretary shall,

8 not more than 10 working days after receiving the

9 request, inform the person making the request of the

10 proper classification.

11 (2) APPLICABILITY OF REQUIREMENT.—In any

12 case in which the Secretary receives a written re13 quest for information about the applicability of ex14 port license requirements under this Act to a pro15 posed transaction or series of transactions, the Sec16 retary shall, not more than 30 days after receiving

17 the request, reply with that information to the per18 son making the request.

19 (3) PUBLICATION OF CLASSIFICATION DETER20 MINATIONS.—The Secretary shall, to the greatest

21 extent practicable, taking into account restrictions

22 on the disclosure of classified or confidential infor23 mation, publish in the Federal Register classification

24 determinations made under paragraph (1).
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1 SEC. 8. PENALTIES, ADMINISTRATIVE PROCEDURES, AND

2 SANCTIONS.

3 (a) PENALTIES FOR VIOLATIONS.—

4 (1) CRIMINAL PENALTIES.—

5 (A) IN GENERAL.—Except as provided in

6 subparagraph (B), whoever knowingly violates

7 or conspires to or attempts to violate any provi8 sion of this Act or any regulation, order, or li9 cense issued under this Act shall be fined not

10 more than 5 times the value of the exports in11 volved or $50,000, whichever is greater, or im12 prisoned for not more than 5 years, or both.

13 (B) WILLFUL VIOLATIONS.—Whoever will14 fully violates or conspires to or attempts to vio15 late any provision of this Act or any regulation,

16 order, or license issued under this Act, with

17 knowledge that the exports involved will be used

18 for the benefit of, or that the destination or in19 tended destination of the goods or technology

20 involved is, any controlled country or controlled

21 enduser—

22 (i) except in the case of an individual,

23 shall be fined not more than 10 times the

24 value of the exports involved or

25 $2,000,000, whichever is greater; and
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1 (ii) in the case of an individual, shall

2 be fined not more than $500,000, or im3 prisoned for not more than 10 years, or

4 both.

5 (C) FAILURE TO REPORT MISUSE UNDER

6 LICENSE.—Any person who is issued a vali7 dated license under this Act for the export of

8 any commercial good or technology to a con9 trolled country and who, with knowledge that

10 such a good or technology is being used by such

11 controlled country for military or intelligence12 gathering purposes, or for purposes of enhanc13 ing capabilities described in section 4(a)(1)(B),

14 contrary to the conditions under which the li15 cense was issued, willfully fails to report such

16 use, shall be subject to the penalties set forth

17 in subparagraph (B).

18 (D) INTENT TO VIOLATE CONTROLS.—Any

19 person who possesses any commercial goods or

20 technology—

21 (i) with the intent to export or reex22 port such goods or technology in violation

23 of an export or reexport control imposed

24 under this Act, or any regulation, order, or
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1 license issued with respect to such control,

2 or

3 (ii) knowing or having reason to be4 lieve that the goods or technology would be

5 so exported or reexported,

6 shall be subject to the penalties set forth in

7 subparagraph (B).

8 (E) EVASION OF CONTROLS.—Any person

9 who takes any action with the intent to evade

10 the provisions of this Act or any regulation,

11 order, or license issued under this Act shall be

12 subject to the penalties set forth in paragraph

13 (B).

14 (2) CIVIL PENALTIES.—

15 (A) IN GENERAL.—The Secretary may im16 pose a civil penalty of not more than $250,000

17 for each violation of this Act or any regulation,

18 order, or license issued under this Act, either in

19 addition to or in lieu of any other liability or

20 penalty which may be imposed for such viola21 tion.

22 (B) PAYMENT OF PENALTIES.—The pay23 ment of any penalty imposed under this para24 graph may be made a condition, for a period of

25 not more than 1 year after the imposition of
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1 such penalty, to the granting, restoration, or

2 continuing validity of any license, permission, or

3 privilege granted or to be granted under this

4 Act to the person upon whom such penalty is

5 imposed. In addition, the payment of any pen6 alty imposed under this paragraph may be de7 ferred or suspended in whole or in part for a

8 period of time not longer than any probation

9 period (which may exceed 1 year) that may be

10 imposed upon such person. Such a deferral or

11 suspension shall not operate as a bar to the col12 lection of the penalty in the event that the con13 ditions of the suspension, deferral, or probation

14 are not fulfilled.

15 (C) REFUNDS.—Any amount paid in satis16 faction of any penalty imposed under this para17 graph, and any amounts realized from the for18 feiture of any property interest or proceeds

19 under subsection (b)(4), shall be covered into

20 the Treasury as a miscellaneous receipt. The

21 head of the department or agency concerned

22 may, in his or her discretion, refund any such

23 penalty imposed under this paragraph within 2

24 years after payment, on the ground of a mate25 rial error of fact or law in the imposition of the
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1 penalty. Notwithstanding section 1346(a) of

2 title 28, United States Code, no action for the

3 refund of any such penalty may be maintained

4 in any court.

5 (D) ACTIONS FOR RECOVERY OF PEN6 ALTIES.—In the event of the failure of any per7 son to pay a penalty imposed under this para8 graph, a civil action for the summary collection

9 of the penalty may, in the discretion of the

10 head of the department or agency concerned, be

11 brought in an appropriate United States dis12 trict court in the name of the United States.

13 (E) CIVIL PENALTY STANDARDS.—The

14 Secretary may by regulation provide standards

15 for establishing levels of civil penalty under this

16 paragraph based upon the seriousness of the

17 violation, the culpability of the violator, and the

18 violator’s record of cooperation with the Gov19 ernment in disclosing the violation.

20 (3) VIOLATIONS OF THE ACT.—Nothing in this

21 paragraph shall limit the power of the Secretary to

22 define by regulations violations under this Act.

23 (b) ADMINISTRATIVE SANCTIONS.—

24 (1) SUSPENSION, REVOCATION, AND DENIAL OF

25 EXPORT PRIVILEGES.—The Secretary may suspend,
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1 revoke, or deny the export or reexport privileges of

2 any person who violates or conspires to or attempts

3 to violate any provision of this Act or any regulation,

4 order, or license issued under this Act.

5 (2) ELIGIBILITY FOR LICENSES.—No person

6 convicted of a violation of this Act (or any regula7 tion, order, or license issued under this Act), any

8 regulation, license, or order issued under the Inter9 national Emergency Economic Powers Act, section

10 793, 794, or 798 of title 18, United States Code,

11 section 4(b) of the Internal Security Act of 1950 (50

12 U.S.C. 783(b)), or section 38 of the Arms Export

13 Control Act (22 U.S.C. 2778) shall be eligible, at

14 the discretion of the Secretary, to apply for or use

15 any export license under this Act for a period of not

16 more than 10 years from the date of the conviction.

17 The Secretary may revoke any export license under

18 this Act in which such person has an interest at the

19 time of the conviction.

20 (3) RELATED PERSONS.—The Secretary may

21 exercise the authority under paragraphs (1) and (2)

22 with respect to any person related, through affili23 ation, ownership, control, or position of responsibil24 ity, to any person who has been sanctioned under

25 this subsection, upon a showing of such relationship
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1 with the sanctioned party and a finding that such

2 action is necessary to prevent an imminent violation

3 of this Act or any regulation, order, or license issued

4 under this Act, and subject to the procedures set

5 forth in subsection (c).

6 (4) FORFEITURE OF PROPERTY INTEREST AND

7 PROCEEDS.—

8 (A) IN GENERAL.—Any person who is con9 victed under subsection (a)(1) of a violation of

10 an export or reexport control imposed under

11 this Act or any regulation, order, or license is12 sued under this Act shall, in addition to any

13 other penalty, forfeit to the United States—

14 (i) any of that person’s interest in, se15 curity of, claim against, or property or

16 contractual rights of any kind in the goods

17 or tangible items that were the subject of

18 the violation;

19 (ii) any of that person’s interest in,

20 security of, claim against, or property or

21 contractual rights of any kind in tangible

22 property that was used in the export or re23 export or attempt to export or reexport

24 that was the subject of the violation; and
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1 (iii) any of that person’s property con2 stituting or derived from any proceeds ob3 tained directly or indirectly as a result of

4 the violation.

5 (B) PROCEDURE.—The procedures in any

6 forfeiture under this paragraph, and the duties

7 and authority of the courts of the United States

8 and the Attorney General with respect to any

9 forfeiture action under this paragraph or with

10 respect to any property that may be subject to

11 forfeiture under this paragraph, shall be gov12 erned by the provisions of section 1963 of title

13 18, United States Code.

14 (c) ADMINISTRATIVE PROCEDURE AND JUDICIAL RE15 VIEW.—

16 (1) ADMINISTRATIVE PROCEDURES RELATING

17 TO CIVIL PENALTIES AND ADMINISTRATIVE SANC18 TIONS.—

19 (A) FORMAL COMPLAINT.—In any case in

20 which a civil penalty or administrative sanction

21 (other than a temporary denial order) is sought

22 under this section, the charged party is entitled

23 to receive a formal complaint specifying the

24 charges and, at his or her request, to contest
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1 the charges in a hearing before an administra2 tive law judge.

3 (B) HEARING PROCEDURES.—Subject to

4 the provisions of this subsection, any such hear5 ing shall be conducted in accordance with sec6 tions 556 and 557 of title 5, United States

7 Code.

8 (C) PRESENTATION OF EVIDENCE IN CAM9 ERA.—In any such hearing the Government

10 may, with the approval of the administrative

11 law judge, present evidence in camera in the

12 presence of the charged party or his or her rep13 resentative.

14 (D) POST-HEARING ACTION BY THE SEC15 RETARY.—After the hearing, the administrative

16 law judge shall make findings of fact and con17 clusions of law in a written decision, which shall

18 be referred to the Secretary. The Secretary

19 shall, in a written order, affirm, modify, or va20 cate the decision of the administrative law

21 judge not later than 30 days after receiving the

22 decision.

23 (E) TIMING.—The proceedings described

24 in this subsection shall be concluded not later

25 than 1 year after the complaint is submitted,
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1 unless the administrative law judge extends

2 such period for good cause shown.

3 (F) FINAL ORDERS; APPEAL.—The order

4 of the Secretary under subparagraph (D) shall

5 be final and may be appealed in accordance

6 with paragraph (4).

7 (2) ADMINISTRATIVE PROCEDURES FOR THE

8 IMPOSITION OF TEMPORARY DENIAL ORDERS.—

9 (A) IN GENERAL.—In any case in which it

10 is necessary, in the public interest, to prevent

11 an imminent violation of this Act or any regula12 tion, order, or license issued under this Act, the

13 Secretary may, without a hearing, issue an

14 order temporarily denying United States export

15 or reexport privileges (hereafter in this sub16 section referred to as a ‘‘temporary denial

17 order’’) to a person. A temporary denial order

18 may be effective no longer than 180 days (un19 less renewed in writing by the Secretary for an

20 additional period of not more than 180 days) in

21 order to prevent such an imminent violation, ex22 cept that a temporary denial order may be re23 newed only after notice and an opportunity for

24 a prompt hearing is provided.
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1 (B) CONTENTS.—A temporary denial order

2 shall define the imminent violation and state

3 why the temporary denial order was granted

4 without a hearing. The person or persons sub5 ject to the issuance or renewal of a temporary

6 denial order may file an appeal of the issuance

7 or renewal of the temporary denial order with

8 an administrative law judge who shall, not more

9 than 10 working days after the appeal is filed,

10 recommend that the temporary denial order be

11 affirmed, modified, or vacated. Parties may

12 submit briefs and other material to the judge.

13 The recommendation of the administrative law

14 judge shall be submitted to the Secretary who

15 shall either accept, reject, or modify the rec16 ommendation by written order not more than 5

17 working days after receiving the recommenda18 tion. The written order of the Secretary under

19 the preceding sentence shall be final and may

20 be appealed as provided in paragraph (4). The

21 temporary denial order shall be affirmed only if

22 it is reasonable to believe that the order is re23 quired in the public interest to prevent an im24 minent violation of this Act or any regulation,

25 order, or license issued under this Act. All ma-
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1 terials submitted to the administrative law

2 judge and the Secretary under this paragraph

3 shall constitute the administrative record for

4 purposes of review by the courts.

5 (3) ADMINISTRATIVE LAW JUDGES.—Adminis6 trative law judges referred to in paragraphs (1) and

7 (2)(B) shall be appointed by the Secretary from

8 among those considered qualified for selection and

9 appointment under section 3105 of title 5, United

10 States Code.

11 (4) JUDICIAL REVIEW.— Any final agency ac12 tion under this Act may be reviewed by appeal to the

13 United States Court of Appeals for the Federal Cir14 cuit.

15 (d) SANCTIONS AGAINST CERTAIN PERSONS.—

16 (1) IN GENERAL.—Except as provided in para17 graph (5), the President may impose the sanctions

18 described in paragraph (3) if the President deter19 mines that a person has knowingly and materially

20 contributed—

21 (A) through the export from the United

22 States of any commercial goods or technology

23 that are subject to the jurisdiction of the Unit24 ed States under this Act, or
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1 (B) through the export from any other

2 country of any commercial goods ±or technology

3 that constitutes a violation of any regulation is4 sued by that country to control exports pursu5 ant to an export control regime,

6 to the efforts by any controlled country or controlled

7 enduser to use, develop, produce, stockpile, or other8 wise acquire chemical or biological weapons, nuclear

9 materials and equipment (as defined in section 4(4)

10 of the Nuclear Non-Proliferation Act of 1978) or

11 any nuclear explosive device, or any missile equip12 ment or technology.

13 (2) PERSONS AGAINST WHICH SANCTIONS ARE

14 TO BE IMPOSED.—Sanctions shall be imposed under

15 paragraph (1) on—

16 (A) the person with respect to whom the

17 President makes the determination described in

18 that paragraph;

19 (B) any successor entity to that person;

20 and

21 (C) any parent, subsidiary, or affiliate of

22 that person if that parent, subsidiary, or affili23 ate knowingly and materially contributed to the

24 activities that were the basis of that determina25 tion.
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1 (3) SANCTIONS.—The sanctions to be imposed

2 under paragraph (1) are—

3 (A) denial of licenses to the sanctioned

4 person to export or reexport, and denial of li5 censes to United States persons to export or re6 export to the sanctioned person, commercial

7 goods and technology to the same intent as the

8 export or reexport of such goods or technology

9 is controlled under this Act;

10 (B) a prohibition on contracting with, and

11 procurement of products and services from, the

12 sanctioned person by any department, agency,

13 of instrumentality of the United States Govern14 ment; and

15 (C) a prohibition on the importation into

16 the United States of products produced by the

17 sanctioned person.

18 (4) CONSULTATIONS WITH FOREIGN GOVERN19 MENTS OF JURISDICTION.—If the President makes a

20 determination in paragraph (1) with respect to a

21 foreign person, the President shall immediately initi22 ate consultations with the government of the country

23 of which that foreign person is a national with re24 spect to the imposition of sanctions under this sec25 tion.
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1 (5) INAPPLICABILITY.—Sanctions set forth in

2 paragraph (3) may not be imposed on a foreign per3 son with respect to acts described in paragraph (1)

4 if the government of the country of which that for5 eign person is a national is a member of an export

6 control regime certified under section 4(d)(2) or a

7 cooperating country with respect to such regime, un8 less a determination made with respect to such

9 country under section 4(d)(5)(C) is in effect.

10 (6) TERMINATION OF SANCTIONS.—Sanctions

11 imposed under this subsection shall apply for a pe12 riod at least one year beginning on the date on

13 which the sanctions are imposed. Such sanctions

14 shall cease to apply, in the case of a foreign person,

15 at such time as paragraph (5) applies. The sanctions

16 shall cease to apply after the end of the 1-year pe17 riod described in the first sentence if the President

18 determines that the person with respect to whom the

19 determination was made under paragraph (1) has

20 ceased all activities described in paragraph (1) that

21 were the subject of the violation and has taken ap22 propriate steps to ensure that such activities will not

23 take place in the future.

24 (e) OTHER AUTHORITIES.—Nothing in this section

25 limits—
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1 (1) the availability of other administrative or

2 judicial remedies with respect to violations of this

3 Act or any regulation, order, or license issued under

4 this Act;

5 (2) the authority to compromise and settle ad6 ministrative proceedings brought with respect to vio7 lations of this Act or any regulation, order, or li8 cense issued under this Act; or

9 (3) the authority to compromise, remit, or miti10 gate seizures and forfeitures under section 1(b) of

11 title VI of the Act of June 15, 1917 (22 U.S.C.

12 401(b)).

13 SEC. 9. DEFINITIONS; REPORTS.

14 (a) DEFINITIONS.—Except as otherwise provided in

15 this Act, as used in this Act:

16 (1) AUSTRALIA GROUP.—The term ‘‘Australia

17 Group’’ means a group of countries that have agreed

18 to restrict the sale of chemical weapons precursors

19 and equipment, including, as of the date of the en20 actment of this Act, Australia, Austria, Belgium,

21 Canada, Denmark, Finland, France, Germany,

22 Greece, Ireland, Italy, Japan, Luxembourg, the

23 Netherlands, New Zealand, Norway, Portugal,

24 Spain, Sweden, Switzerland, the United Kingdom,

25 and the United States.
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1 (2) CECA.—The term ‘‘CECA’’ means the

2 Commercial Export Control Administration estab3 lished in section 6(c).

4 (3) COCOM.—The term ‘‘COCOM’’ means the

5 Coordinating Committee for Multilateral Export

6 Controls, a non-treaty organization created in 1949

7 that—

8 (A) cooperatively restricts exports of goods

9 and technology to certain countries;

10 (B) collectively determines the goods and

11 technology that are so restricted and the des12 tinations to which exports are so restricted; and

13 (C) as of the date of the enactment of this

14 Act, includes Australia, Belgium, Canada, Den15 mark, Finland, France, Germany, Greece, Italy,

16 Japan, Luxembourg, the Netherlands, Norway,

17 Portugal, Spain, Sweden, Turkey, the United

18 Kingdom, and the United States.

19 (4) COMMERCIAL GOODS AND TECHNOLOGY.—

20 The term ‘‘commercial goods and technology’’ means

21 goods and technology that were developed or are em22 ployed for bona fide civilian endusers.

23 (5) COMMITTEE.—The term ‘‘Committee’’

24 means the Commercial Export Control Policy Com25 mittee established in section 6(b).
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1 (6) CONTROL INDEX.—The term ‘‘control

2 index’’ means the United States Commercial Export

3 Control Index established under section 3(b)(1).

4 (7) CONTROLLABLE.—The term ‘‘controllable’’

5 means capable of being made subject to an effective

6 prohibition or significant restriction on exports. A

7 good or technology shall not be considered to be con8 trollable unless it is—

9 (A) manufactured or sold by only a modest

10 number of suppliers who can be positively iden11 tified;

12 (B) consumed or used by only a modest

13 number of endusers who can be positively iden14 tified and whose export activities can be con15 trolled; and

16 (C) individually traceable or not easily con17 cealed or disguised.

18 (8) CONTROLLED COUNTRY AND CONTROLLED

19 ENDUSER.—(A) The term ‘‘controlled country’’

20 means a country identified under section 4(b)(4).

21 The term ‘‘controlled enduser’’ means an enduser

22 identfied under section 4(b)(4).

23 (B) The term ‘‘controlled enduser’’ means an

24 enduser identified under section 4(b)(4).
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1 (9) COOPERATING COUNTRY.—The term ‘‘co2 operating country’’ means a country which has en3 tered into an agreement with the United States or

4 an export control regime on maintaining export re5 strictions comparable in practice to those maintained

6 by such export control regime.

7 (10)(A) ENDUSE.—The term ‘‘enduse’’ means

8 the intended application or use of an item as rep9 resented to an export license applicant by the im10 porter of the item in another country.

11 (B) ENDUSER.—The term ‘‘enduser’’ means

12 the person located abroad who is the true party in

13 interest in actually receiving an export for the end14 use designated for the export.

15 (11) EXPORT.—The term ‘‘export’’ means an

16 actual shipment, transfer, or transmission of goods

17 or technology out of the United States.

18 (12) EXPORT CONTROL REGIME.—The term

19 ‘‘export control regime’’ means a system of export

20 controls agreed to and maintained by the United

21 States and one or more other countries and includes

22 COCOM, the Australia Group, the MTCR, and the

23 Nuclear Supplies Group.

24 (13) EXPORT LICENSE APPLICATION.—The

25 term ‘‘export license application’’ means a request
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1 for permission or authorization to export or reexport

2 a commercial good or technology the export of which

3 is controlled under this Act.

4 (14) FOREIGN AVAILABILITY.—The term ‘‘for5 eign availability’’ means the availability within con6 trolled countries or to controlled countries or con7 trolled endusers without restriction from sources

8 outside the United States of commercial goods and

9 technology that would reasonably be considered to

10 substitute for those produced in the United States

11 or other countries that participate with the United

12 States in export control regimes so as to render ex13 port and reexport controls imposed by the United

14 States or such regimes on such goods or technology

15 so produced ineffective in achieving their intended

16 purpose. A determination of foreign availability of a

17 good or technology from sources outside the United

18 States shall be made only after considering the avail19 ability of such good or technology—

20 (A) within a controlled country;

21 (B) from any country from which exports

22 to a controlled country or controlled enduser of

23 the good or technology are not restricted; and

24 (C) from countries that participate with

25 the United States in export control regimes to
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1 the extent that export and reexport restrictions

2 on the good or technology maintained by such

3 countries are determined by the Secretary to be

4 ineffective.

5 (15) FOREIGN PERSON.—The term ‘‘foreign

6 person’’ means—

7 (A) an individual who is not a citizen of

8 the United States or a ‘‘protected individual’’

9 as defined in section 274B of the Immigration

10 and Nationality Act (8 U.S.C. 1324b(a)(3));

11 and

12 (B) a corporation, partnership, or other

13 entity that is created or organized under the

14 laws of a foreign country or that has its prin15 cipal place of business outside the United

16 States.

17 (16) GOOD.—The term ‘‘good’’ means any arti18 cle, natural or manmade substance, material, supply,

19 or manufactured product, including inspection and

20 test equipment, and excluding technical data.

21 (17) MISSILE TECHNOLOGY CONTROL REGIME;

22 MTCR.—The term ‘‘Missile Technology Control Re23 gime’’ or ‘‘MTCR’’ means the policy statement be24 tween the United States, the United Kingdom, the

25 Federal Republic of Germany, France, Italy, Can-
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1 ada, and Japan, announced on April 16, 1987, to re2 strict sensitive missile-relevant transfers based on

3 the MTCR Annex, and any amendments thereto,

4 which, as of the date of the enactment of this Act,

5 includes the each of those countries and Australia,

6 Austria, Belgium, Denmark, Finland, Luxembourg,

7 the Netherlands, Norway, Sweden, New Zealand,

8 and Spain.

9 (18) MISSILE EQUIPMENT OR TECHNOLOGY;

10 MTCR EQUIPMENT OR TECHNOLOGY.—The terms

11 ‘‘missile equipment or technology’’ and ‘‘MTCR

12 equipment or technology’’ mean those items listed in

13 the MTCR Annex.

14 (19) MTCR annex.—The term ‘‘MTCR Annex’’

15 means the Guidelines and Equipment and Tech16 nology Annex of the MTCR, and any amendments

17 thereto.

18 (20) NON-REGIME COUNTRY.—The term ‘‘non19 regime country’’ means a country that is not a mem20 ber of an export control regime and is not a cooper21 ating country.

22 (21) NUCLEAR SUPPLIERS’ GROUP.—The term

23 ‘‘Nuclear Suppliers’ Group’’ means a group of coun24 tries that—
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1 (A) in 1978, committed themselves to pro2 hibit the export of certain nuclear-related goods

3 and technology unless the importing country

4 agreed to a pledge of ‘‘no explosive use’’ and to

5 acceptance of safeguards by the International

6 Atomic Energy Agency; and

7 (B) as of the date of the enactment of this

8 Act, is comprised of Australia, Austria, Bel9 gium, Bulgaria, Canada, Czech Republic, Den10 mark, Finland, France, Germany, Greece, Hun11 gary, Ireland, Italy, Japan, Luxembourg, the

12 Netherlands, Norway, Poland, Portugal, Roma13 nia, Russia, Slovak Republic, Spain, Sweden,

14 Switzerland, the United Kingdom, and the

15 United States.

16 (22) PERSON.—The term ‘‘person’’ includes the

17 singular and the plural and any individual, partner18 ship, corporation, or other form of association, in19 cluding any government or agency thereof.

20 (23) REEXPORT.—The term ‘‘reexport’’ means

21 an actual shipment, transfer, or transmission of

22 U.S.-origin goods or technology from one foreign

23 country to another.

24 (24) MEMBER OF AN EXPORT CONTROL RE25 GIME.—A ‘‘member’’ of an export control regime is
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1 a country that is a participant in that export control

2 regime.

3 (25) SECRETARY.—The term ‘‘Secretary’’

4 means the Secretary of Commerce.

5 (26) SECURITY CONTROL LIST.—The term ‘‘se6 curity control list’’ means the list established under

7 section 4(b).

8 (27) TECHNOLOGY.—The term ‘‘technology’’

9 means the information and know how (whether in

10 tangible form, such as models, prototypes, drawings,

11 sketches, diagrams, blueprints, or manuals, or in in12 tangible form, such as training or technical services)

13 that can be used to design, produce, manufacture,

14 utilize, or reconstruct goods, including computer

15 software and technical data, but not the goods them16 selves.

17 (28) UNITED STATES.—The term ‘‘United

18 States’’ means the States of the United States, the

19 District of Columbia, and any commonwealth, terri20 tory, dependency, or possession of the United States,

21 and includes the outer Continental Shelf, as defined

22 in section 2(a) of the Outer Continental Shelf Lands

23 Act (43 U.S.C. 1331(a)).

24 (29) UNITED STATES PERSON.—The term

25 ‘‘United States person’’ means—
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1 (A) any United States resident or national,

2 including any ‘‘protected individual’’ as defined

3 in section 274B of the Immigration and Na4 tionality Act (8 U.S.C. 1324b(a)(3)), but not

5 including an individual resident outside the

6 United States and employed by other than a

7 United States person;

8 (B) any domestic concern (including any

9 permanent domestic establishment of any for10 eign concern); and

11 (C) any foreign subsidiary or affiliate (in12 cluding any permanent foreign establishment)

13 of any domestic concern which is controlled in

14 fact by such domestic concern, as determined

15 under regulations of the President.

16 (30) U.S. ORIGIN.—The term ‘‘U.S.-origin’’

17 means, with respect to a good or technology, that

18 the good or technology, when imported into a foreign

19 country, is treated as a product of the United States

20 for purposes of that country’s customs laws.

21 (31) WEAPONS OF MASS DESTRUCTION.—The

22 term ‘‘weapons of mass destruction’’ refers to chemi23 cal, biological, and nuclear weapons, and missiles ca24 pable of delivering such weapons.
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1 (b) ANNUAL REPORT.—Not later than December 31

2 of each year, the Secretary shall submit to the Congress

3 a report on the administration of this Act during the pre4 ceding fiscal year. Such report shall include detailed infor5 mation with respect to—

6 (1) the implementation of the policies set forth

7 in section 2;

8 (2) export licensing activities under sections 4

9 and 5, and any changes in the exercise of the au10 thorities contained in those sections, including a re11 port on all export license applications pending be12 yond the deadlines contained in section 7;

13 (3) designations under section 4(a)(3) of con14 trolled countries and controlled endusers, and any

15 changes in such designations;

16 (4) the results, in as much detail as may be in17 cluded consistent with the national security and the

18 need to maintain the confidentiality of proprietary

19 information, of the review and revision of the control

20 index required by section 3(b)(4);

21 (5) any emergency sanctions imposed under

22 section 5(a), and the results of negotiations required

23 by section 5(a)(3)(F);

24 (6) determinations of foreign availability made

25 under section 3(g), the criteria used to make such
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1 determinations, and the removal of any export or re2 export controls as a result of such determinations;

3 (7) consultations with and recommendations of

4 the industry advisory committees established under

5 section 6(d) and the use made of the advice given

6 by such committees;

7 (8) organizational and procedural changes un8 dertaken in furtherance of the policies set forth in

9 this Act, including changes to increase the efficiency

10 of the export licensing process; and

11 (9) violations, enforcement activities, and any

12 sanctions imposed under section 8.

13 SEC. 10. EFFECT ON OTHER ACTS; CONFORMING AMEND14 MENTS.

15 (a) IN GENERAL.—To the extent provided in this

16 Act, this Act shall be construed to modify, repeal, super17 sede, and otherwise affect the provisions of other laws au18 thorizing control over exports of commercial goods and

19 technology.

20 (b) COORDINATION OF CONTROLS.—

21 (1) NUCLEAR NON-PROLIFERATION ACT OF

22 1978.—The requirement in section 309(c) of the Nu23 clear Non-Proliferation Act of 1978 for procedures

24 that provide for prior consultations with other agen25 cies, and any procedure published by the President
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1 pursuant to that section, shall be deemed to be met

2 by the deliberations of the Committee regarding the

3 policy for exports and reexports of goods and tech4 nology to which such section 309(c) applies.

5 (2) AUTHORITY UNDER OTHER ACTS.—The au6 thority granted to the President under section

7 203(a)(1)(B) of the International Emergency Eco8 nomic Powers Act (50 U.S.C. 1702(a)(1)(B)) and

9 section 5(b)(1)(B) of the Trading with the Enemy

10 Act (50 U.S.C. App. 5(b)(1)(B)) with respect to li11 censing or control of exports and reexports of com12 mercial goods and technology and related services

13 shall be delegated to the Secretary.

14 (c) COMMODITY JURISDICTION.—

15 (1) IN GENERAL.—Notwithstanding any other

16 provision of law—

17 (A) an item agreed for control on the

18 International Munitions List of COCOM shall

19 be subject to control under the Arms Export

20 Control Act and not under this Act;

21 (B) except as provided in paragraphs (2)

22 and (4), an item which is on the International

23 Industrial List of COCOM shall be subject to

24 control under this Act and not under the Arms

25 Export Control Act; and
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1 (C) no item may be included on both the

2 security control list and the United States Mu3 nitions List after publication of the lists re4 quired under paragraph (3) and resolution of

5 any dispute with respect to such lists under

6 paragraph (4).

7 (2) EXCEPTIONS.—

8 (A) An item described in subparagraph (B)

9 that is not on the International Munitions List

10 may be subject to control under the Arms Ex11 port Control Act—

12 (i)(I) for a period of 9 months after

13 the date on which the United States pro14 poses to COCOM that the item be added

15 to the International Munitions List, and

16 (II) for an additional 9-month period,

17 but only if negotiations in COCOM to add

18 the item to the International Munitions

19 List are continuing; or

20 (ii) if the Secretary of State, in con21 sultation with the Secretary, so deter22 mines, except that if the Secretary dis23 agrees with the Secretary of State with re24 spect to such item, the item may be sub25 ject to control under the Arms Export
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1 Control Act only if the disagreement is re2 solved by the Secretaries or by the Presi3 dent pursuant to the procedures set forth

4 in subparagraphs (B) and (C) of para5 graph (4).

6 (B) An item referred to in subparagraph

7 (A) is an item that—

8 (i) is specifically designed or devel9 oped for military application;

10 (ii) does not have bona fide civilian

11 applications; and

12 (iii) does not have performance equiv13 alent in form and function to those of an

14 article or service used for civilian applica15 tions.

16 (3) PUBLICATION OF LISTS.—

17 (A) Not later than 3 months after the date

18 of the enactment of this Act, the Secretary shall

19 publish the security control list and the Sec20 retary of State shall publish the United States

21 Munitions List, with all revisions that have

22 been made in accordance with this subsection.

23 (B) Not later than 3 months after the date

24 of the enactment of this Act, the Secretary of

25 State shall publish in a separate list those items
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1 remaining subject to control under the Arms

2 Export Control Act under paragraph (2).

3 (C) If either the Secretary or the Secretary

4 of State fails to publish a revised list in accord5 ance with subparagraph (A), there shall be ex6 cluded from the list of the Secretary that did

7 not so publish a revised list any item included

8 on the list of the Secretary that did so publish

9 a revised list.

10 (4) COMMODITY JURISDICTION DISPUTE RESO11 LUTION.—

12 (A) Whenever—

13 (i) the Secretary or the Secretary of

14 State receives a request to determine

15 whether an item is subject to control under

16 this Act or the Arms Export Control Act;

17 (ii) either Secretary finds that an item

18 is included on both the security control

19 index and the United States Munitions

20 List;

21 (iii) an item appearing on the list of

22 one Secretary under paragraph (3)(A) is

23 considered by the other Secretary to be

24 under the jurisdiction of that other Sec25 retary; or
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1 (iv) the Secretary disagrees with the

2 inclusion of an item on the list published

3 under paragraph (3)(B);

4 the Secretary or the Secretary of State (as the

5 case may be) shall refer the matter and any rel6 evant information to the other Secretary.

7 (B) The 2 Secretaries shall have a period

8 of 15 days following the referral of a matter

9 under subparagraph (A) to resolve any dif10 ferences with respect to the matter involved.

11 (C) If the 2 Secretaries fail to resolve such

12 differences within that 15-day period, either

13 Secretary may refer the matter to the President

14 who, not later than 15 days after receiving the

15 referral, shall notify the 2 Secretaries of his de16 termination on the matter in dispute.

17 (D) In resolving disputes under subpara18 graph (C), the President may decide that an

19 item which is not on the International Muni20 tions List is subject to control under the Arms

21 Export Control Act only if the President—

22 (i) determines that extraordinary cir23 cumstances exist affecting the national se24 curity of the United States, which require
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1 that the item be controlled under the Arms

2 Export Control Act;

3 (ii) proposes to COCOM that the item

4 be added to the International Munitions

5 List; and

6 (iii) not later than 10 days after mak7 ing the determination under clause (i),

8 submits a report to the Speaker of the

9 House of Representatives and the Presi10 dent pro tempore of the Senate, describing

11 in detail the reasons for the determination,

12 in appropriate classified form, as nec13 essary.

14 (E) If either the Secretary or the Secretary

15 of State does not respond to a referral under

16 subparagraph (A), the Secretary that did not so

17 respond shall be deemed to concur with the

18 other Secretary on the matter involved.

19 (d) AMENDMENTS TO THE INTERNATIONAL EMER20 GENCY ECONOMIC POWERS ACT.—

21 (1) LIMITATION ON AUTHORITY.—Section

22 203(a)(1) of the International Emergency Economic

23 Powers Act (50 U.S.C. 1706) is amended by adding

24 at the end the following:
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1 ‘‘The President may prohibit or curtail the exportation

2 and reexportation of any commercial goods or technology

3 subject to the jurisdiction of the United States under this

4 title only to the extent provided, and subject to the criteria

5 set forth in, sections 4 and 5 of the Commercial Export

6 Administration Act of 1993, unless such prohibition or

7 curtailment is part of a total embargo of all exports and

8 imports (other than exports of items described in section

9 7(b)(6) of such Act).’’.

10 (2) EXTENSION OR REINSTATEMENT OF EX11 PIRED PROVISION OF LAW.—Section 207 of the

12 International Emergency Economic Powers Act (50

13 U.S.C. 1706) is amended—

14 (A) by redesignating subsections (c) and

15 (d) as subsections (d) and (e), respectively, and

16 (B) by inserting after subsection (b) the

17 following new subsection:

18 ‘‘(c) EXPIRED LEGISLATIVE AUTHORITY.—The

19 President may use the authority of this Act to extend or

20 reinstate an expired provision of the Commercial Export

21 Administration Act of 1993 for only one period of not

22 more than 180 days after the date of such expiration.’’.

23 SEC. 11. AUTHORIZATION OF APPROPRIATIONS; TERMI24 NATION DATE.

25 (a) AUTHORIZATION OF APPROPRIATIONS.—
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1 (1) REQUIREMENT OF AUTHORIZING LEGISLA2 TION.—

3 (A) Notwithstanding any other provision of

4 law, money appropriated to the Department of

5 Commerce to carry out the purposes of this Act

6 may be obligated or expended only if—

7 (i) the appropriation thereof has been

8 previously authorized by law enacted on or

9 after the date of the enactment of this Act;

10 or

11 (ii) the amount of all such obligations

12 and expenditures does not exceed an

13 amount previously prescribed by law en14 acted on or after such date.

15 (B) To the extent that legislation enacted

16 after the making of an appropriation to carry

17 out the purposes of this Act authorizes the obli18 gation or expenditure thereof, the limitation in

19 subparagraph (A) shall have no effect.

20 (2) AUTHORIZATION.—There are authorized to

21 be appropriated to the Department of Commerce

22 such sums as may be necessary to carry out the pur23 poses of this Act.

24 (b) TERMINATION DATE.—
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1 The authority granted by this Act terminates

2 on September 30, 2000.

3 SEC. 12. MISCELLANEOUS PROVISIONS.

4 (a) AMENDMENTS TO TITLE 5, UNITED STATES

5 CODE.—(1) Section 5314 of title 5, United States Code,

6 is amended—

7 (A) by striking ‘‘Under Secretary of Commerce

8 for Export Administration’’; and

9 (B) by adding at the end the following:

10 ‘‘Director, Commercial Export Control Adminis11 tration.’’.

12 (2) Section 5315 of title 5, United States Code, is

13 amended—

14 (A) in the item relating to Assistant Secretaries

15 of Commerce, by striking ‘‘(11)’’ and inserting

16 ‘‘(9)’’; and

17 (B) by adding at the end the following:

18 ‘‘Deputy Director, Commercial Export Control

19 Administration.

20 ‘‘Assistant Director for Export Control, Com21 mercial Export Control Administration.

22 ‘‘Assistant Director for Enforcement and Com23 pliance, Commercial Export Control Administration.

24 ‘‘Assistant Director for Security and Intel25 ligence, Commercial Export Control Administration.
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1 ‘‘Assistant Director for Nonproliferation, Com2 mercial Export Control Administration.

3 ‘‘Chief Negotiator, Commercial Export Control

4 Administration.’’.

5 (b) EXPORT ADMINISTRATION ACT OF 1979.—Upon

6 the effective date of this Act, sections 5, 6 (except to the

7 extent provided in section 8(b)), 11A, 11B, 11C, 10(h),

8 and 10(o) of the Export Administration Act of 1979, and

9 section 6 of that Act (except to the extent provided in sec10 tion 8(b) of that Act), shall cease to be effective, and all

11 other provisions of that Act to the extent such provisions

12 apply to such ineffective sections shall cease to be effec13 tive.

14 (c) SAVINGS PROVISIONS.—

15 (1) IN GENERAL.—All delegations, rules, regu16 lations, orders, determinations, licenses, or other

17 forms of administrative action which—

18 (A) have been made, issued, conducted, or

19 allowed to become effective—

20 (i) under provisions of the Export Ad21 ministration Act of 1979 referred to in

22 subsection (b), or

23 (ii) in the exercise of functions trans24 ferred by this Act, and
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1 (B) are in effect at the time this Act takes

2 effect,

3 shall continue in effect according to their terms until

4 modified, superseded, set aside, or revoked under

5 this Act.

6 (b) ADMINISTRATIVE PROCEEDINGS.—This Act shall

7 not apply to any administrative proceedings commenced

8 or any application for a license made, under the Export

9 Administration Act of 1979 or in the exercise of functions

10 transferred by this Act, which is pending at the time this

11 Act takes effect.

12 (d) EFFECTIVE DATE.—This Act takes effect on the

13 date of the enactment of this Act.

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