II

103D CONGRESS

2D SESSION S. 1846

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 SENATE OF THE UNITED STATES

FEBRUARY 10 (legislative day, JANUARY 25), 1994

Mrs. MURRAY (for herself and Mr. BENNETT) introduced the following bill;

which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs

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.—

Sec. 1. Short title; table of contents.
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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 processing procedures.

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

Sec. 9. Generally available software.

Sec. 10. Definitions; reports.

Sec. 11. Effect on other Acts; conforming amendments.

Sec. 12. Authorization of appropriations; termination date.

Sec. 13. 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

18 United States, and only after full consideration of

19 the economic impact of the controls and their effec20 tiveness in achieving the intended objectives, and for

21 a limited time in order to negotiate for multilateral

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

3 United 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 and 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 enactment of this Act, the Sec18 retary shall publish the full text of each Inter19 national 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 an export control regime, propose the

11 elimination of controls on such commercial

12 good or technology in accordance with the

13 procedures of such regime and publish a

14 notice of such proposal in the Federal Reg15 ister; 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, except as re6 quired under the Atomic Energy Act of 1954,

7 require a validated license under this Act for

8 the export of such commercial goods or tech9 nology to that country.

10 (5) SHARING OF INFORMATION.—Each depart11 ment or agency of the United States, including any

12 intelligence agency, and all contractors with any

13 such department or agency, shall, upon the request

14 of the Secretary or the ITC and consistent with the

15 protection of intelligence sources and methods and

16 safeguarding of classified information, furnish infor17 mation to the ITC concerning foreign availability of

18 goods and technology subject to export controls

19 under this Act. Each such department or agency

20 shall allow the ITC access to any such information

21 from a laboratory or other facility within such de22 partment or agency.

23 (6) REMOVAL OF CONTROLS ON LESS SOPHISTI24 CATED GOODS OR TECHNOLOGY.—In any case in

25 which export or reexport controls are removed from
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1 commercial goods or technology under this sub2 section, then such controls may not be imposed or

3 maintained on any similar commercial goods or tech4 nology whose function, technological approach, per5 formance thresholds, and other attributes that form

6 the basis for controls under this Act do not exceed

7 the technical parameters of the commercial goods or

8 technology from which the controls are removed

9 under this subsection.

10 (7) REPORT OF DETERMINATIONS AND AC11 TIONS.—Not later than 10 days after any deter12 mination by the ITC under paragraph (3)(B), or in

13 the case of determination of the President under

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

15 the initiation of negotiations under paragraph

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

17 Committee on Banking, Housing, and Urban Affairs

18 of the Senate and the Committee on Foreign Affairs

19 of the House of Representatives setting forth a de20 tailed explanation of the determination of the ITC

21 and the determination of the President (if applica22 ble), and the implications of such determinations.

23 SEC. 4. NATIONAL SECURITY CONTROLS.

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

2 policy set forth in section 2(b)(7), the President

3 may, in accordance with this section, prohibit or cur4 tail the export and reexport of any commercial goods

5 or technology subject to the jurisdiction of the

6 United States, if such goods and technology would—

7 (A) directly, substantially, and materially

8 contribute to the military capability of countries

9 or endusers posing a strategic threat to the

10 United States; or

11 (B) directly, substantially, and materially

12 enable a country or enduser to acquire the ca13 pability to develop, produce, stockpile, use, or

14 deliver weapons of mass destruction.

15 (2) EXERCISE OF AUTHORITY.—The authority

16 granted by this subsection shall be exercised by the

17 Secretary, and shall be implemented by means of ex18 port licenses issued by the Secretary.

19 (b) SECURITY CONTROL LIST.—

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

21 and maintain, as part of the control index estab22 lished under section 3(b), a security control list,

23 comprised of all commercial goods or technology on

24 which export and reexport controls are in effect

25 under this section, and the countries or endusers to
30

•S 1846 IS

1 which the controls apply. The security control list

2 shall clearly identify the specific commercial goods

3 and technology the export or reexport of which is

4 controlled, and each country and enduser to which

5 such exports and reexports are controlled. Such list

6 shall be reviewed and updated at least once every 12

7 months.

8 (2) CONTROLLED GOODS AND TECHNOLOGY.—

9 Export or reexport controls may be imposed under

10 this section only on commercial goods and tech11 nology that are controllable, only if the controls

12 would be effective in restricting the capabilities set

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

14 (A) the export controls are imposed pursu15 ant to an export control regime, such as

16 COCOM, the MTCR, the Australia Group, the

17 Nuclear Suppliers Group, or any export control

18 regime entered into by the United States under

19 subsection (d)(3); or

20 (B) in the absence of an applicable export

21 control regime, no foreign availability of such

22 goods or technology exists.

23 (3) DESIGNATED COUNTRIES AND

24 ENDUSERS.—In administering export controls under

25 this section, the Secretary shall, for each good and
31

•S 1846 IS

1 technology listed on the security control list, des2 ignate the specific countries and endusers for which

3 export licenses or reexport authorizations are re4 quired. These countries and endusers may include

5 only—

6 (A) controlled countries and controlled

7 endusers; and

8 (B) non-regime countries with respect to

9 the export control regime which controls the ex10 port of such good and technology.

11 (4) CONTROLLED COUNTRIES AND

12 ENDUSERS.—A country may be designated a con13 trolled country, and an enduser may be designated

14 a controlled enduser, with respect to a particular

15 good or technology on the security control list only

16 if exports of such good or technology to such country

17 or enduser are controlled cooperatively pursuant to

18 the agreement of an export control regime, and only

19 if such country or enduser—

20 (A) has military capabilities, policies, or

21 activities which represent a direct strategic

22 threat to the national security of the members

23 of the export control regime; or

24 (B) is engaged in or is deliberately assist25 ing another controlled country or enduser in the
32

•S 1846 IS

1 design, development, production, stockpiling,

2 use, or delivery of weapons of mass destruction.

3 (5) REVISION OF DESIGNATION OF CON4 TROLLED COUNTRIES AND ENDUSERS.—

5 (A) CONTROLLED COUNTRIES.—In any

6 case in which a controlled country—

7 (i) adopts military policies that rep8 resent a lesser strategic threat to members

9 of the appropriate export control regime;

10 (ii) terminates efforts to acquire

11 weapons of mass destruction and adopts

12 policies consistent with international ef13 forts to restrict the proliferation of weap14 ons of mass destruction;

15 (iii) terminates activities that would

16 assist the capabilities of other controlled

17 countries in those activities described in

18 paragraph (4)(B); or

19 (iv) agrees to adhere to policies and

20 practices of the appropriate export control

21 regime and implements an effective export

22 control system;

23 such that the reasons for its being designated

24 a controlled country cease to exist, the Sec25 retary shall propose to the appropriate export
33

•S 1846 IS

1 control regime to remove the country’s designa2 tion as a controlled country. Upon the removal

3 of such designation by the export control re4 gime, the Secretary shall, with respect to the

5 commercial goods and technology which are

6 controlled under this section pursuant to the

7 agreement of that regime, change the designa8 tion of the country on the security control list

9 from a controlled country to a non-regime coun10 try. If the country also agrees to participate in

11 or be a cooperating country with respect to the

12 export control regime, the Secretary shall re13 move such country from the security control

14 list.

15 (B) CONTROLLED ENDUSERS.—In any

16 case in which a controlled enduser—

17 (i) ceases to engage in the design, de18 velopment, production, stockpiling, use, or

19 delivery of weapons of mass destruction; or

20 (ii) terminates activities that would

21 assist the capabilities of controlled coun22 tries in those activities described in para23 graph (4)(B);

24 such that the reasons for its being designated

25 a controlled enduser cease to exist, the Sec-
34

•S 1846 IS

1 retary shall propose to the appropriate export

2 control regime to remove the enduser’s designa3 tion as a controlled enduser. Upon the removal

4 of such designation by the export control re5 gime, the Secretary shall, with respect to the

6 commercial goods and technology which are

7 controlled under this section pursuant to agree8 ment of that regime, remove that enduser from

9 the security control list.

10 (c) EXPORT LICENSING POLICIES FOR DESIGNATED

11 COUNTRIES AND CONTROLLED ENDUSERS.—

12 (1) EXPORTS TO CONTROLLED COUNTRIES AND

13 ENDUSERS.—

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

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

16 authority or permission to export or reexport

17 goods and technology on the security control

18 list to controlled countries and controlled

19 endusers.

20 (B) PRESUMPTION OF DENIAL FOR CER21 TAIN CONTROLLED ENDUSERS.—Exports and

22 reexports to controlled endusers in controlled

23 countries of goods or technology on which con24 trols are in effect under this section shall carry

25 a presumption of denial if such requirement is
35

•S 1846 IS

1 the policy of the export control regime control2 ling the goods or technology. In the negotia3 tions required by subsection (d)(1), the Sec4 retary shall seek agreement on such a policy by

5 every export control regime.

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

7 ENDUSERS.—Exports and reexports to

8 endusers, other than controlled endusers, in

9 controlled countries of goods or technology on

10 which controls are in effect under this section

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

12 the Secretary and shall be submitted for multi13 lateral review if required by the export control

14 regime controlling the goods or technology.

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

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

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

18 her discretion, require authority or permission

19 to export or reexport to endusers in non-regime

20 countries goods or technology on which controls

21 are in effect under this section if—

22 (i) such requirement is the policy of

23 the export control regime controlling the

24 goods or technology, for exports of such
36

•S 1846 IS

1 goods and technology to non-regime coun2 tries; and

3 (ii) the Secretary has determined that

4 the unrestricted export of such goods or

5 technology to such non-regime country

6 would directly, substantially, and materi7 ally contribute to the military capability of

8 a controlled country or enduser described

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

10 of a controlled country or enduser de11 scribed in subsection (a)(1)(B), through

12 the threat of diversion or other means.

13 (B) EXCEPTION.—Notwithstanding clause

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

15 months beginning on the effective date of this

16 Act, the Secretary may require a license for the

17 export or reexport to any non-regime country of

18 any good or technology controlled under sub19 section (b)(2). During such period, the Sec20 retary shall engage in negotiations with other

21 members of the export control regime control22 ling the good or technology for the purpose of

23 developing a common list of controlled countries

24 and controlled endusers, and a common policy

25 on exports to non-regime countries. After the
37

•S 1846 IS

1 end of such 18-month period, export controls on

2 such good or technology may be imposed only

3 under subparagraph (A) or under section 5.

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

5 and reexports to non-regime countries of goods

6 and technology on which controls are in effect

7 under this section shall be considered on a na8 tional discretion basis.

9 (ii) Exports to endusers in non-regime

10 countries other than controlled endusers shall

11 carry a presumption of approval.

12 (iii) Exports to controlled endusers in non13 regime countries shall be reviewed on a case-by14 case basis and shall be submitted for multilat15 eral review if required by the export control re16 gime controlling the good or technology.

17 (iv) The Secretary shall pursue negotia18 tions with countries participating in export con19 trol regimes to achieve a consistent and effec20 tive multilateral approach to exports to non-re21 gime countries.

22 (D) NEGOTIATIONS TO ENHANCE CO23 OPERATION.—The Secretary shall pursue nego24 tiations with non-regime countries regarding

25 their cooperation in restricting the export of
38

•S 1846 IS

1 goods and technology consistent with the pur2 poses of those export control regimes controlling

3 such exports. The goal of such negotiations

4 shall be to produce agreements with such coun5 tries under which such countries impose export

6 restrictions consistent with the objectives set

7 forth in subsection (d)(1).

8 (E) REVIEW OF AGREEMENTS.—The Sec9 retary shall review annually any agreement

10 reached pursuant to subparagraph (D). If the

11 Secretary determines that a country is not ad12 hering to the terms of such an agreement with

13 the United States, the Secretary may restrict or

14 eliminate any preferential licensing treatment

15 for exports to that country provided under the

16 agreement and shall notify other members of

17 the appropriate export control regime of such

18 action.

19 (F) SANCTIONS.—If the Secretary deter20 mines that a non-regime country or an enduser

21 in a non-regime country is exporting to a con22 trolled country or controlled enduser goods or

23 technology on which controls are in effect under

24 this section, the Secretary may—
39

•S 1846 IS

1 (i) suspend favorable licensing treat2 ment for such goods and technology to

3 such non-regime country or enduser in a

4 non-regime country;

5 (ii) propose to the other members of

6 the export control regime controlling the

7 goods or technology the suspension of fa8 vorable licensing treatment of the goods

9 and technology to such non-regime country

10 or enduser by all members of the regime;

11 and

12 (iii) consider applying United States

13 sanctions pursuant to section 8(d) to such

14 non-regime country or enduser.

15 (d) EXPORT CONTROL REGIMES AND LICENSING

16 POLICIES.—

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

18 effective multilateral export controls and strengthen19 ing the controls imposed by export control regimes,

20 the Secretary shall, with respect to each export con21 trol regime, pursue negotiations with other members

22 of such regime to accomplish the following objec23 tives:

24 (A) No license requirement for exports and

25 reexports among members of the regime and to
40

•S 1846 IS

1 countries who are cooperating countries with re2 spect to the regime.

3 (B) Development of a common list of

4 goods and technology to which export controls

5 are applied, and a common list of countries and

6 endusers to which exports are controlled, by

7 members of the regime.

8 (C) Agreement on the same treatment, to

9 be applied by all members of the regime, of ex10 ports and reexports to members of the regime

11 cooperating countries, and non-regime coun12 tries, which could include multilateral review of

13 exports to controlled countries and controlled

14 endusers and multilateral sanctions to be ap15 plied to such countries and endusers, or to

16 members of the regime and cooperating coun17 tries who violate export controls imposed by the

18 regime.

19 (D) National procedures resulting in com20 parable implementation and enforcement of ex21 port controls among the members of the regime,

22 including laws providing appropriate civil and

23 criminal penalties and statutes of limitations

24 sufficient to deter potential violations.
41

•S 1846 IS

1 (E) Periodic meetings of high-level rep2 resentatives of governments participating in the

3 regime for the purpose of coordinating national

4 export control policies and issuing policy guid5 ance for dissemination to exporters in partici6 pating countries.

7 (F) Establishment of procedures for regu8 lar consultation among members of the regime

9 on proposed export license applications that in10 cludes consultation with individuals with suffi11 cient technical expertise to assess the licensing

12 status of exports and to ensure the reliability of

13 endusers.

14 (G) Development of common procedures

15 for enforcing the export controls agreed upon

16 by the regime, including adequate training and

17 authority for enforcement officers to investigate

18 and prevent illegal exports.

19 (H) Development of a common system of

20 export control documentation to verify the

21 movement of goods and technology.

22 (I) Establishment of procedures for the co23 ordination and exchange of information con24 cerning violations of controls agreed to by the

25 regime.
42

•S 1846 IS

1 (J) Establishment of procedures for the co2 ordination and sharing of intelligence informa3 tion on controlled countries and controlled

4 endusers.

5 (2) CERTIFICATION OF MULTILATERAL EXPORT

6 CONTROL REGIMES.—

7 (A) When the Secretary determines that

8 an existing export control regime has met the

9 objectives set forth in paragraph (1), the Sec10 retary shall certify such determination and pub11 lish such certification in the Federal Register,

12 and exports to all countries adhering to that re13 gime shall be subject to the licensing treatment

14 set forth in paragraph (5).

15 (B) COCOM shall be considered to have

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

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

18 export control regime shall be entered into by the

19 United States until the President has submitted to

20 the appropriate committees in the House of Rep21 resentatives and the Senate and published in the

22 Federal Register, at least 90 days before the new re23 gime becomes effective, a report—

24 (A) certifying that the members of the new

25 regime represent all significant sources of sup-
43

•S 1846 IS

1 ply for the goods and technology which are to

2 be controlled by the regime;

3 (B) specifying the list of goods and tech4 nology to be controlled cooperatively by mem5 bers of the regime and the destinations to

6 which such goods and technology are to be con7 trolled; and

8 (C) certifying that such goods and tech9 nology are controllable and that licensing their

10 export would be effective in restricting the ca11 pabilities set forth in subsection (a)(1)(A) or

12 (B).

13 (4) FORMALIZATION OF REGIME CONTROLS.—

14 The Secretary shall pursue efforts to consolidate and

15 formalize existing export control regimes, such as

16 COCOM, the MTCR, the Australia Group, and the

17 Nuclear Suppliers Group, into a single, new, multi18 lateral entity for the coordination of export controls.

19 Until such new entity is formed, the Secretary shall

20 also pursue efforts to rationalize export controls

21 among the existing export control regimes, especially

22 with respect to coordinating the performance and

23 other identifying characteristics of goods and tech24 nologies which are controlled under such regimes.
44

•S 1846 IS

1 (5) EXPORT LICENSING POLICIES TO COUN2 TRIES PARTICIPATING IN OR COOPERATING WITH

3 EXPORT CONTROL REGIMES.—

4 (A) FAVORABLE LICENSING TREAT5 MENT.—Except as otherwise required by the

6 Atomic Energy Act of 1954, if an export con7 trol regime is certified under paragraph (2), no

8 authority or permission may be required for ex9 ports or reexports of goods and technology con10 trolled by such regime to or from members of

11 the regime or cooperating countries with respect

12 to such regime.

13 (B) EXEMPTION FROM SANCTIONS.—Sanc14 tions for violations of export controls may not

15 be imposed under section 8(d) on foreign per16 sons who are nationals of countries that are

17 members of an export control regime certified

18 under paragraph (2) or cooperating countries

19 with respect to such regime, to the extent pro20 vided in section 8(d)(5).

21 (C) EXCEPTION.—If the Secretary deter22 mines that a member of an export control re23 gime certified under paragraph (2), a cooperat24 ing country with respect to such regime, or an

25 enduser in a country that is such a regime
45

•S 1846 IS

1 member or in such a cooperating country is en2 gaging in a pattern and practice of noncompli3 ance with controls agreed to by the regime, the

4 Secretary shall seek a similar determination by

5 the other members of the regime concerning

6 such noncompliance. If such a determination is

7 made, the Secretary shall propose the suspen8 sion of favorable licensing treatment of exports

9 and reexports to that noncomplying regime

10 member, cooperating country, or enduser by all

11 members of the regime during the period in

12 which that determination is in effect.

13 (D) NEW MEMBERS.—When a country

14 that is not a member of an export control re15 gime certified under paragraph (2) agrees to

16 the objectives and procedures of such regime

17 and has become a member of that regime, the

18 Secretary shall certify that this new member is

19 eligible for the licensing treatment set forth in

20 this paragraph, and shall publish such certifi21 cation in the Federal Register.

22 (6) TRANSITION PERIOD TO CERTIFIED EXPORT

23 CONTROL REGIMES.—For a period of 18 months be24 ginning on the effective date of this Act, the Sec25 retary shall apply the licensing policies set forth in
46

•S 1846 IS

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

2 are cooperating countries with respect to an export

3 control regime even if the Secretary has not certified

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

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

6 certify an export control regime under paragraph

7 (2), the Secretary may—

8 (A) continue to apply the licensing policies

9 set forth in paragraph (5) if the negotiations

10 prescribed in paragraph (1) continue; or

11 (B) require authority or permission to ex12 port or reexport goods or technology on which

13 controls are in effect under this section to any

14 country that participates in or is a cooperating

15 country with respect to such export control re16 gime.

17 SEC. 5. EMERGENCY CONTROLS.

18 (a) AUTHORITY.—

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

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

21 may, in accordance with this section, prohibit or cur22 tail the export and reexport of any commercial goods

23 or technology subject to the jurisdiction of the

24 United States to any country or enduser. The au25 thority to impose controls under this subsection shall
47

•S 1846 IS

1 be exercised by the Secretary, in consultation with

2 other members of the Commercial Export Control

3 Policy Committee established under section 6(b),

4 and shall be implemented by means of export li5 censes issued by the Secretary.

6 (2) EXPIRATION OF AUTHORITY.—

7 (A) IN GENERAL.—Any emergency controls

8 imposed under this section shall expire 180

9 days after they are imposed, unless they are

10 terminated earlier by the President, or unless

11 they are extended, adopted as national security

12 controls under section 4, or included in a total

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

14 imposed by the President under the Inter15 national Emergency Economic Powers Act, the

16 Trading with the Enemy Act or other provision

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

18 imports to a country. Any extension or subse19 quent extension of the emergency controls shall

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

21 (B) EXCEPTION FOR MULTILATERAL

22 AGREEMENTS.—Subparagraph (A) shall not

23 apply to controls imposed by the President in

24 order to fulfill obligations of the United States

25 pursuant to a treaty to which the United States
48

•S 1846 IS

1 is a party or pursuant to an agreement to im2 pose such controls multilaterally by the United

3 Nations or a similar international or regional

4 organization of which the United States is a

5 member. If such a treaty or agreement ceases

6 to be in effect, emergency controls imposed by

7 the President pursuant to such treaty or agree8 ment shall immediately cease to be in effect.

9 (3) CRITERIA.—The President may impose

10 emergency controls under this section only if the

11 President—

12 (A) determines that the emergency controls

13 are a necessary and appropriate policy response

14 to an immediate and extraordinary threat to the

15 national security or foreign policy of the United

16 States;

17 (B) determines that no other alternative

18 means can achieve the national security or for19 eign policy objectives of the United States with20 in a reasonable time frame;

21 (C) determines that the emergency controls

22 can reasonably be expected to achieve the in23 tended objective within 180 days after being im24 posed, after having taken into consideration

25 other factors, including the availability from
49

•S 1846 IS

1 one or more countries of comparable goods and

2 technology to those on which the controls are

3 imposed;

4 (D) determines that the United States has

5 the ability to enforce all aspects of the proposed

6 emergency controls effectively;

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

8 more than 180 days is necessary for the United

9 States to obtain the agreement of other coun10 tries to adopt such controls so that such con11 trols may be imposed under section 4;

12 (F) commences, through the Secretary,

13 within 10 days after the imposition of the emer14 gency controls, negotiations with other coun15 tries to adopt the emergency controls so that

16 such controls may be imposed under section 4,

17 unless such emergency controls are imposed

18 under paragraph (2)(B); and

19 (G) consults with the Congress and sub20 mits the necessary report under paragraph (4).

21 (4) REQUIRED CONSULTATIONS.—

22 (A) IN GENERAL.—The President may im23 pose emergency controls under this section only

24 after consultation with industry under subpara25 graph (C), foreign countries under subpara-
50

•S 1846 IS

1 graph (D), and the Congress, including the

2 Committee on Foreign Affairs of the House of

3 Representatives and the Committee on Bank4 ing, Housing, and Urban Affairs of the Senate.

5 (B) LIMITATION.—The President may not

6 impose emergency controls under this section

7 until the President has submitted to the Con8 gress and published in the Federal Register a

9 report—

10 (i) specifying the purpose of the con11 trols;

12 (ii) specifying the determinations of

13 the President with respect to each of the

14 criteria set forth in paragraph (3), the

15 bases for such determinations, and the ad16 verse national security, foreign policy, and

17 economic consequences of the controls;

18 (iii) containing an analysis identifying

19 those commercial goods and technology

20 which must be controlled in order to

21 achieve the intended purpose of the emer22 gency controls, and describing the reasons

23 for selecting such items;
51

•S 1846 IS

1 (iv) describing the nature, subjects,

2 and plans for the negotiations with other

3 countries required by paragraph (3)(F);

4 (v) containing a thorough assessment

5 of the foreign availability of the commer6 cial goods and technology proposed for

7 control;

8 (vi) containing an analysis, based on

9 past experience with emergency controls

10 and based upon information on foreign

11 availability, of the extent to which the

12 emergency controls will be effective in

13 achieving the intended purpose;

14 (vii) incorporating an evaluation of

15 the impact of the controls on the export

16 performance of the United States, on the

17 competitive position of the United States

18 and United States industry in the inter19 national economy, on the international rep20 utation of the United States as a reliable

21 supplier of goods and technology, on the

22 economic well-being of individual United

23 States companies and their employees and

24 shareholders, their foreign investments,
52

•S 1846 IS

1 and their joint ventures, and on public

2 health and safety;

3 (viii) specifying that the President has

4 determined that the emergency controls

5 can be expected to achieve the intended

6 purpose with reasonable certainty within

7 180 days after being imposed;

8 (ix) indicating the nature and results

9 of the alternative means attempted under

10 paragraph (3)(B);

11 (x) describing the results of the con12 sultations with industry required by sub13 paragraph (C) and with other countries re14 quired by subparagraph (D); and

15 (xi) describing the views of the Presi16 dent regarding the likelihood that all other

17 countries representing a source of supply

18 of the goods or technology on which the

19 controls are imposed will be willing to im20 pose comparable controls promptly.

21 (C) CONSULTATION WITH INDUSTRY.—The

22 Secretary shall consult with and seek advice

23 from affected United States industries and the

24 appropriate industry advisory committees estab25 lished under section 6(d) before imposing emer-
53

•S 1846 IS

1 gency controls under this section. Such con2 sultation and advice shall be with respect to the

3 matters described in subparagraph (B), and

4 such other matters as the Secretary considers

5 appropriate.

6 (D) CONSULTATION WITH OTHER COUN7 TRIES.—Before imposing emergency controls

8 under this section, the President shall consult

9 with such other countries as the President con10 siders appropriate with respect to the proposed

11 controls, including other countries that rep12 resent a significant source of supply of goods

13 and technology proposed for the controls. Pur14 suant to paragraph (3)(F), the President shall,

15 within 10 days after imposing emergency con16 trols, initiate negotiations with other supplier

17 countries of goods and technology on which the

18 controls are imposed, and other countries as the

19 President considers appropriate, with respect to

20 adopting the controls so that the controls may

21 be imposed under section 4.

22 (E) CONFIDENTIALITY.—To the extent

23 necessary to further the effectiveness of the

24 emergency controls, portions of the report re25 quired by subparagraph (B) may be submitted
54

•S 1846 IS

1 to the Congress on a classified basis, and shall

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

3 a non-classified version of such report shall be

4 simultaneously made available to the public.

5 Each such report shall, at the time it is submit6 ted to the Congress, also be submitted to the

7 Comptroller General, who shall assess the re8 port’s full compliance with the purposes of this

9 subsection.

10 (5) EMERGENCY CONTROL LIST.—The Sec11 retary shall establish and maintain, as part of the

12 control index, a list comprised of any commercial

13 goods and technology on which emergency controls

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

15 on the list, the specific countries or endusers to

16 which the controls apply. In addition to clearly iden17 tifying which commercial goods or technology are

18 subject to emergency controls to which specific coun19 tries or endusers, the list shall also indicate when

20 such controls are due to expire. Such list shall be re21 viewed and updated every 6 months for the purpose

22 of making such revisions as are necessary in order

23 to carry out this section.

24 (b) PROCEDURES AND LIMITATIONS ON EMERGENCY

25 CONTROLS.—
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•S 1846 IS

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

2 the 180-day period after emergency controls are im3 posed under subsection (a), the President shall—

4 (A) terminate the emergency controls;

5 (B) adopt the emergency controls as na6 tional security controls under section 4;

7 (C) include the emergency controls in an

8 embargo described in paragraph (2) on all ex9 ports and imports that are imposed under the

10 International Emergency Economic Powers Act,

11 the Trading with the Enemy Act, or other pro12 vision of law; or

13 (D) extend the emergency controls under

14 subsection (c).

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

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

17 of all exports to and imports from the country

18 against which the controls under this section were

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

20 (3) CESSATION OF EMERGENCY CONTROLS.—

21 (A) IN GENERAL.— Emergency controls

22 imposed under this section on goods or tech23 nology shall cease to be in effect immediately

24 upon—
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•S 1846 IS

1 (i) the imposition of national security

2 controls under section 4 on the same goods

3 and technology to the country or enduser

4 with respect to which the emergency con5 trols were imposed; or

6 (ii) the imposition, under the Inter7 national Emergency Economic Powers Act,

8 the Trading with the Enemy Act, or other

9 provision of law, of an embargo described

10 in paragraph (2).

11 (B) CONVERSION TO MULTILATERAL

12 AGREEMENTS.—If the President imposes emer13 gency controls on goods or technology to a

14 country or enduser under this section in order

15 to fulfill obligations of the United States pursu16 ant to a treaty to which the United States is a

17 party, or pursuant to an agreement to impose

18 such controls multilaterally by an international

19 organization of which the United States is a

20 member, any emergency controls imposed prior

21 thereto under this section on the same goods or

22 technology to the same country or enduser shall

23 immediately cease to be in effect.

24 (4) LIMITATIONS ON REIMPOSITION.—Emer25 gency controls which have ceased to be in effect
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•S 1846 IS

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

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

3 not be reimposed by the President under subsection

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

5 which the original controls expire.

6 (c) EXTENSION OF EMERGENCY CONTROLS.—

7 (1) REPORT.—If the President decides to ex8 tend emergency controls imposed under subsection

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

10 the President shall, not later than 60 calendar days

11 before the expiration of such controls, transmit to

12 the Congress a report on the proposed extension,

13 setting forth the reasons for the proposed extension

14 in detail and specifying the period of time, which

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

16 proposed to be extended. In particular, such report

17 shall specify in detail—

18 (A) the determinations of the President

19 with respect to each of the criteria set forth in

20 subsection (a)(3);

21 (B) the reasons why negotiations required

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

23 the adoption of the emergency controls under

24 section 4, and the reasonable period of time the
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1 President expects will be required to success2 fully conclude such negotiations;

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

4 exports and imports is not presently justified to

5 achieve the national security or foreign policy

6 objectives of the United States; and

7 (D) information on each of the items set

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

9 (2) CONSIDERATION OF EXTENSION.—If the

10 Congress, not later than 60 calendar days after the

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

12 adopts a joint resolution pursuant to paragraph (3)

13 approving the extension of the emergency controls,

14 then such emergency controls shall remain in effect

15 for the period specified in the report or until termi16 nated by the President, whichever occurs first, but

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

18 which the controls would otherwise expire under sub19 section (a)(2). If the Congress, within 60 calendar

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

21 to adopt a joint resolution approving the extension

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

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

24 (3) JOINT RESOLUTIONS.—
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1 (A) DEFINITION.—For purposes of this

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

3 only a joint resolution the matter after the re4 solving clause of which is as follows: ‘‘That,

5 pursuant to section 5(c) of the Commercial Ex6 port Administration Act of 1993, the President

7 may extend emergency controls as specified in

8 the report submitted to the Congress on

9 lllllllllllll.’’, with the

10 blank space being filled with the appropriate

11 date.

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

13 a report is submitted to the House of Rep14 resentatives and the Senate under paragraph

15 (1), a joint resolution with respect to the exten16 sion of controls specified in such report shall be

17 introduced (by request) in the House of Rep18 resentatives by the chairman of the Committee

19 on Foreign Affairs, for the chairman and the

20 ranking minority member of the Committee, or

21 by Members of the House designated by the

22 chairman and ranking minority member; and

23 shall be introduced (by request) in the Senate

24 by the majority leader of the Senate, for himself

25 and the minority leader of the Senate, or by
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•S 1846 IS

1 Members of the Senate designated by the ma2 jority leader and the minority leader of the Sen3 ate. If either House of Congress is not in ses4 sion on the day on which such a report is sub5 mitted, the joint resolution shall be introduced

6 in that House, as provided for in the preceding

7 sentence, on the first day thereafter on which

8 that House is in session.

9 (C) COMMITTEE REFERRALS.—All joint

10 resolutions introduced in the House of Rep11 resentatives shall be referred to the appropriate

12 committee and all joint resolutions introduced

13 in the Senate shall be referred to the Commit14 tee on Banking, Housing, and Urban Affairs.

15 (D) DISCHARGE.—If the committee of ei16 ther House to which a joint resolution has been

17 referred has not reported the joint resolution by

18 the end of 30 calendar days after its referral,

19 the committee shall be discharged from further

20 consideration of the joint resolution or of any

21 other joint resolution introduced with respect to

22 the same matter.

23 (E) CONSIDERATION.—A joint resolution

24 under this paragraph shall be considered in the

25 Senate in accordance with the provisions of sec-
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•S 1846 IS

1 tion 601(b)(4) of the International Security As2 sistance and Arms Export Control Act of 1976.

3 For the purpose of expediting the consideration

4 and passage of joint resolutions reported or dis5 charged under this paragraph, it shall be in

6 order for the Committee on Rules of the House

7 of Representatives to present for consideration

8 a resolution of the House of Representatives

9 providing procedures for the immediate consid10 eration of a joint resolution under this para11 graph which may be similar, if applicable, to

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

13 the International Security Assistance and Arms

14 Export Control Act of 1976.

15 (F) DUPLICATIVE RESOLUTIONS.—In the

16 case of a joint resolution described in subpara17 graph (A), if, before the passage by one House

18 of a joint resolution of that House, that House

19 receives a resolution with respect to the same

20 matter from the other House, then—

21 (i) the procedure in that House shall

22 be the same as if no joint resolution had

23 been received from the other House; and

24 (ii) the vote on final passage shall be

25 on the joint resolution of the other House.
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•S 1846 IS

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

2 expiration of the emergency controls extended

3 under this subsection, the President determines

4 that a further extension of emergency controls

5 for an additional period of time of not more

6 than 180 calendar days is necessary, para7 graphs (1) through (3) shall apply to such fur8 ther extension.

9 (d) EFFECT ON OTHER AUTHORITY.—

10 (1) EMBARGO AUTHORITY.—Nothing in this

11 section shall be construed to limit the authority of

12 the President to impose an embargo on all exports

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

14 exports of goods described in subparagraphs (A) and

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

16 Emergency Economic Powers Act, the Trading With

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

18 case in which the President exercises any such au19 thority to impose an embargo, the requirements of

20 this section shall not apply for so long as such em21 bargo is in effect.

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

23 Nothing in this section affects the authorities con24 ferred upon the President by section 5(b) of the

25 Trading With the Enemy Act, which were being ex-
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•S 1846 IS

1 ercised with respect to a country on July 1, 1977,

2 as a result of a national emergency declared by the

3 President before that date, and are being exercised

4 on the date of enactment of this Act.

5 (B) Nothing in this section affects the authori6 ties conferred upon the President by the Inter7 national Emergency Economic Powers Act or other

8 provision of law, which were being exercised with re9 spect to a country before the date of enactment of

10 this Act as a result of a national emergency declared

11 by the President before that date, and are being ex12 ercised with respect to such country on such date of

13 enactment.

14 SEC. 6. EXPORT CONTROL AUTHORITIES.

15 (a) EXPORT CONTROL AUTHORITY AND FUNC16 TIONS.—

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

18 the President or a department or agency outside the

19 Department of Commerce, all power, authority, and

20 discretion conferred by this Act shall be exercised by

21 the Secretary. The Secretary is responsible for all

22 export control functions required by this Act, subject

23 to subsection (b).

24 (2) DELEGATION.—The Secretary may delegate

25 any export control function under this Act to the Di-
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•S 1846 IS

1 rector of the Commercial Export Control Adminis2 tration appointed under subsection (c), or to any

3 other officer of the Department of Commerce.

4 (3) TRANSFER OF LICENSING AND REGU5 LATORY FUNCTIONS.—In addition to the authorities

6 and responsibilities otherwise provided for in this

7 Act, there are hereby transferred to the Secretary

8 the following functions.

9 (A) TRANSFERS FROM THE DEPARTMENT

10 OF TREASURY.—There are hereby transferred

11 to the Secretary all export control and licensing

12 authorities and functions with respect to com13 mercial goods and technology, and related serv14 ices, exercised by the Office of Foreign Assets

15 Control of the Department of the Treasury, be16 fore the effective date of this Act, under—

17 (i) the International Emergency Eco18 nomic Powers Act;

19 (ii) the Trading With the Enemy Act;

20 (iii) section 504 of the International

21 Security Development and Cooperation Act

22 of 1985 (22 U.S.C. 2349aa–8);

23 (iv) the United Nations Participation

24 Act;
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•S 1846 IS

1 (v) the Comprehensive Anti-Apartheid

2 Act of 1986; and

3 (vi) any other provision of law which

4 authorizes the imposition by the United

5 States of embargoes or economic sanctions

6 against foreign countries.

7 (B) TRANSFERS FROM THE NUCLEAR REG8 ULATORY COMMISSION.—There are hereby

9 transferred to the Secretary all export control

10 and licensing authorities and functions to the

11 extent such functions apply to commercial

12 goods and technology of the Nuclear Regulatory

13 Commission under—

14 (i) the Atomic Energy Act of 1954;

15 (ii) the Nuclear Non-Proliferation Act

16 of 1978; and

17 (iii) the Energy Reorganization Act of

18 1974.

19 (C) TRANSFERS FROM THE SECRETARY OF

20 ENERGY.—There are hereby transferred to the

21 Secretary all authorities and functions which

22 are exercised by the Secretary of Energy, before

23 the effective date of this Act, under—
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•S 1846 IS

1 (i) section 131 of the Atomic Energy

2 Act of 1954, relating to the entry into sub3 sequent arrangements; and

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

5 Non-Proliferation Act of 1978, relating to

6 approval of enrichment after export of

7 source material or special nuclear material.

8 (D) MISCELLANEOUS TRANSFERS.—There

9 are hereby transferred to the Secretary such ex10 port licensing and related regulatory functions

11 and authorities not specifically or otherwise

12 vested or delegated by statute, as the Secretary,

13 in consultation with the Director of the Office

14 of Management and Budget, determines to be

15 appropriate.

16 (E) INCIDENTAL TRANSFERS.—The Direc17 tor of the Office of Management and Budget, in

18 consultation with the Secretary, shall make

19 such determinations as may be necessary with

20 regard to the transfer of functions under this

21 Act, to make such additional incidental disposi22 tions of assets, liabilities, contracts, property,

23 records, and unexpended balances of appropria24 tions, authorizations, allocations, and other

25 funds held, used, arising from, available to, or
67

•S 1846 IS

1 to be made available in connection with the

2 functions transferred by this Act, as the Direc3 tor considers necessary to carry out this Act.

4 (F) EMPLOYEE TRANSFER PROVISIONS.—

5 The Secretary, in consultation with the head of

6 any affected department or agency and the Di7 rector of the Office of Management and Budg8 et, is authorized to transfer to the Department

9 of Commerce, or from the Department of Com10 merce to another department or agency, any

11 Federal employees employed to carry out the li12 censing and regulatory functions required by

13 this Act. The Secretary is authorized to exer14 cise, with respect to such transferred Federal

15 employees, all authority available to the head of

16 the agency from which such Federal employees

17 are transferred. Such authority shall include,

18 but not be limited to, the authority to prescribe

19 regulations incident to the exercise of such au20 thority.

21 (4) PRESIDENTIAL DELEGATION OF AUTHOR22 ITY.—With respect to those powers, authorities, or

23 discretion reserved to the President by this Act, the

24 President may not delegate or transfer such power,

25 authority, or discretion to any official of any depart-
68

•S 1846 IS

1 ment or agency the head of which is not appointed

2 by the President by and with the advice and consent

3 of the Senate.

4 (5) EXCLUSIVE JURISDICTION OF THE SEC5 RETARY OF ENERGY.—The Secretary of Energy

6 shall have exclusive jurisdiction with respect to the

7 authorization under paragraph (2) in the first sen8 tence of section 57b. of the Atomic Energy Act of

9 1954, of all activities constituting the direct or indi10 rect engagement in the production of special nuclear

11 material outside the United States. Nothing in this

12 Act shall be construed to give the Secretary dual or

13 concurrent jurisdiction with the Secretary of Energy

14 with respect to such activities, including the export

15 or reexport of technology related to nuclear fuel

16 cycle facilities or activities, or to expand the jurisdic17 tion that the Secretary of Energy exercised under

18 57b. of the Atomic Energy Act of 1954 before the

19 effective date of this Act.

20 (b) COMMERCIAL EXPORT CONTROL POLICY COM21 MITTEE.—

22 (1) ESTABLISHMENT.—There is established a

23 Commercial Export Control Policy Committee.

24 (2) FUNCTIONS.—The Committee shall—
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•S 1846 IS

1 (A) provide policy guidance and advice to

2 the Secretary on commercial export control is3 sues;

4 (B) review policy recommendations pro5 posed by the Secretary and other members of

6 the Committee; and

7 (C) receive policy recommendations from

8 other agencies and resolve any policy disputes

9 among departments and agencies under this

10 Act.

11 (3) MEMBERSHIP.—The Committee shall be

12 comprised of—

13 (A) the Secretary;

14 (B) the Secretary of Defense;

15 (C) the Secretary of Energy;

16 (D) the Secretary of State;

17 (E) the National Security Adviser;

18 (F) the National Economic Adviser; and

19 (G) the Director of the Commercial Export

20 Control Administration.

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

22 chaired by the National Economic Adviser and the

23 National Security Adviser.

24 (5) DELEGATION; OTHER REPRESENTATIVES.—

25 A member of the Committee under paragraph (3)
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•S 1846 IS

1 may designate the deputy head of his or her depart2 ment or agency to serve in his or her absence as a

3 member of the Committee, but this authority may

4 not be delegated to any other individual. The Chairs

5 may also invite the temporary participation in the

6 Committee’s meetings of representatives from other

7 offices and agencies as appropriate to the issues

8 under consideration.

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

10 of the Committee may call a meeting of the Commit11 tee. Meetings shall not be subject to section 552b of

12 title 5, United States Code.

13 (c) THE COMMERCIAL EXPORT CONTROL ADMINIS14 TRATION.—

15 (1) ESTABLISHMENT.—There is established in

16 the Department of Commerce the Commercial Ex17 port Control Administration. CECA shall be the

18 agency responsible for the implementation of export

19 controls imposed under this Act.

20 (2) PRINCIPAL OFFICERS.—

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

22 head of CECA a Director, who shall be ap23 pointed by the President, by and with the ad24 vice and consent of the Senate. The Director,

25 under the supervision and direction of the Sec-
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•S 1846 IS

1 retary, shall perform such administrative and

2 executive functions as the Secretary shall dele3 gate, including—

4 (i) the formulation of United States

5 export control and technology transfer poli6 cies with respect to commercial goods and

7 technology;

8 (ii) the implementation of export con9 trol policies through the administration of

10 licenses for exports and reexports of com11 mercial goods and technology, and the en12 forcement of export controls, to the extent

13 provided in this Act;

14 (iii) the establishment of the control

15 index, and the development of proposals

16 for revisions of export control lists of ex17 port control regimes;

18 (iv) the conduct of bilateral and multi19 lateral negotiations relating to export con20 trols of export control regimes and emer21 gency controls under section 5;

22 (v) the distribution of duties among

23 the personnel, administrative units, and of24 fices of CECA; and
72

•S 1846 IS

1 (vi) such other matters as the Sec2 retary may specify.

3 (B) DEPUTY DIRECTOR.—The Director

4 shall be assisted by a Deputy Director, who

5 shall be appointed by the President, by and

6 with the advice and consent of the Senate. The

7 Deputy Director shall supervise and coordinate

8 the operations of CECA.

9 (C) ASSISTANT DIRECTOR FOR EXPORT

10 CONTROL.—The Assistant Director for Export

11 Control of CECA shall assist the Director and

12 shall carry out CECA’s responsibilities with re13 spect to—

14 (i) processing export license applica15 tions;

16 (ii) emergency control policies;

17 (iii) the review and revision of the

18 control index;

19 (iv) foreign availability determinations

20 under section 3(g);

21 (v) requests for the classification of

22 commodities on the control index;

23 (vi) coordinating the activities of the

24 industry advisory committees appointed

25 under subsection (d);
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•S 1846 IS

1 (vii) export control functions and re2 sponsibilities transferred under subsection

3 (a)(3); and

4 (viii) such other matters as the Direc5 tor may specify.

6 (D) ASSISTANT DIRECTOR FOR NON7 PROLIFERATION.—The Assistant Director for

8 Nonproliferation of CECA shall carry out

9 CECA’s responsibilities with respect to policy

10 development on—

11 (i) export and reexport controls under

12 the MTCR;

13 (ii) chemical and biological weapons

14 export and reexport controls imposed pur15 suant to the agreement of the Australia

16 Group;

17 (iii) export and reexport controls on

18 goods and technology imposed pursuant to

19 section 309(c) of the Nuclear Non-Pro20 liferation Act of 1978, and proliferation is21 sues of the Nuclear Suppliers Group;

22 (iv) the designation of controlled

23 countries and controlled endusers for pur24 poses of restricting the capabilities de25 scribed in section 4(a)(1)(B); and
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•S 1846 IS

1 (v) such other matters as the Director

2 may specify.

3 (E) ASSISTANT DIRECTOR FOR SECURITY

4 AND INTELLIGENCE.—The Assistant Director

5 for Security and Intelligence of CECA shall

6 carry out CECA’s responsibilities with respect

7 to—

8 (i) coordination and liaison with the

9 Department of Defense, the Armed Forces

10 of the United States, and the intelligence

11 community;

12 (ii) development and maintenance of

13 information on enduser reliability, includ14 ing conducting outside the United States

15 prelicense investigations and post-shipment

16 verifications of items licensed for export;

17 and

18 (iii) such other matters as the Direc19 tor may specify.

20 (F) ASSISTANT DIRECTOR FOR ENFORCE21 MENT AND COMPLIANCE.—The Assistant Direc22 tor for Enforcement and Compliance of CECA

23 shall carry out CECA’s responsibilities with re24 spect to—
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•S 1846 IS

1 (i) the enforcement and compliance

2 duties of CECA, as provided in subsection

3 (e); and

4 (ii) coordination with the Commis5 sioner of Customs in the enforcement of

6 this Act.

7 (G) CHIEF NEGOTIATOR.—The Chief Ne8 gotiator of CECA shall hold the rank of ambas9 sador, and shall be responsible for the develop10 ment, coordination, and conduct of all negotia11 tions regarding export control regimes, includ12 ing negotiations related to COCOM, the Aus13 tralia Group, the Nuclear Suppliers Group, and

14 the MTCR, negotiations described in section

15 4(c)(2)(D), and negotiations required under

16 section 5 regarding emergency controls.

17 (H) APPOINTMENTS.—The officers de18 scribed in subparagraphs (C), (D), (E), (F),

19 and (G) shall each be appointed by the Presi20 dent, by and with the advice and consent of the

21 Senate.

22 (d) INDUSTRY ADVISORY COMMITTEES.—

23 (1) TECHNICAL ADVICE AND SUPPORT.—

24 (A) IN GENERAL.—Upon written request

25 by representatives of a substantial segment of
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•S 1846 IS

1 any industry that produces goods or technology

2 subject to export controls under this Act, the

3 Secretary shall appoint an industry advisory

4 committee for any such goods or technology

5 that the Secretary determines are difficult to

6 evaluate because of questions concerning tech7 nical matters, worldwide availability and actual

8 utilization of goods and technology, or licensing

9 procedures.

10 (B) COMPOSITION.—Each such committee

11 shall consist of representatives of United States

12 industry and the United States Government. No

13 person serving on any such committee who is a

14 representative of industry shall serve on such

15 committee for more than 4 consecutive years.

16 (C) CONSULTATION.—The Secretary and

17 the Committee shall consult with appropriate

18 industry advisory committees with respect to

19 questions involving—

20 (i) technical matters, including licens21 ing procedures;

22 (ii) worldwide availability and utiliza23 tion of controlled goods and technology;
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•S 1846 IS

1 (iii) revisions of the control index, in2 cluding proposed revisions of export control

3 regime agreements;

4 (iv) the issuance of regulations;

5 (v) gathering of information from in6 dustry on illegal sales and diversion of

7 technology in furtherance of the enforce8 ment of this Act; and

9 (vi) any other questions that the Sec10 retary considers appropriate.

11 Members of the public shall be given a reason12 able opportunity, under regulations prescribed

13 by the Secretary, to present evidence to any in14 dustry advisory committee.

15 (D) MULTILATERAL NEGOTIATIONS.—The

16 Secretary may include industry representatives

17 from appropriate industry advisory committees

18 in the United States delegations to export con19 trol regime negotiations.

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

21 member of an industry advisory committee, the

22 Secretary may reimburse such member for trav23 el, subsistence, and other necessary expenses in24 curred by such member in connection with the

25 duties of such member on such committee.
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•S 1846 IS

1 (F) CHAIRPERSON; MEETINGS.—Each in2 dustry advisory committee shall elect a chair3 person (who may not be an officer or employee

4 of the United States Government), and shall

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

6 chairperson unless the chairperson determines,

7 in consultation with the other members of the

8 committee, that such a meeting is not necessary

9 to achieve the purposes of this subsection.

10 (G) DURATION.—Each industry advisory

11 committee shall be terminated after a period of

12 2 years, unless extended by the Secretary for

13 one additional 2-year period.

14 (H) AGENCY DISCLOSURES.—The Sec15 retary, in conjunction with other departments

16 and agencies participating in the administration

17 of this Act, shall disclose to each industry advi18 sory committee adequate information, consist19 ent with national security, necessary for such

20 committee to discharge its duties.

21 (I) CERTIFICATION OF FOREIGN AVAIL22 ABILITY.—If an industry advisory committee

23 certifies to the Secretary that any of the goods

24 or technology with respect to which such com25 mittee was appointed meet the foreign availabil-
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•S 1846 IS

1 ity standards of section 3(g), the Secretary

2 shall refer the matter to the International

3 Trade Commission which shall make a foreign

4 availability assessment of such goods or tech5 nology under such section and shall submit a

6 report on such foreign availability to the indus7 try advisory committee and the Secretary.

8 (2) POLICY ADVICE.—The Secretary shall ap9 point a group of knowledgeable individuals from

10 businesses affected by export controls to provide ad11 vice to the Secretary and the Committee on export

12 control policy issues. The chairperson of such group

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

14 represent industry advisory committees regarding re15 view of control lists and export control regime pro16 posals.

17 (e) ENFORCEMENT AUTHORITY.—

18 (1) GENERAL AUTHORITIES SHARED BY COM19 MERCE AND CUSTOMS.—To the extent necessary or

20 appropriate to the enforcement of this Act or to the

21 imposition of any penalty, forfeiture, or liability aris22 ing under this Act, the Secretary and the Commis23 sioner of Customs (and officers or employees specifi24 cally designated by either the Secretary or the Com25 missioner) may—
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•S 1846 IS

1 (A) require reports or the keeping of

2 records by any person;

3 (B) take the sworn testimony of any per4 son;

5 (C) administer oaths or affirmations; and

6 (D) by subpoena, require any person to ap7 pear and testify or to appear and produce

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

9 to inspect the books, records and other writings,

10 premises, or property of any person.

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

12 subpoena issued to any person under this paragraph,

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

14 any such person and a hearing, shall have jurisdic15 tion to issue an order requiring such person to ap16 pear and give testimony or to appear and produce

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

18 failure to obey such order of the court may be pun19 ished by such court as a contempt thereof.

20 (2) ENFORCEMENT AUTHORITY OF THE DE21 PARTMENT OF COMMERCE.—

22 (A) IN GENERAL.—Subject to subpara23 graph (B), the Secretary shall have the respon24 sibility for investigations conducted within the

25 United States in the enforcement of this Act. In
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•S 1846 IS

1 the enforcement of this Act, the Secretary is

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

3 seize goods or technology at those places within

4 the United States other than those ports speci5 fied in paragraph (3)(A). The search, detention

6 (after search), or seizure of goods and tech7 nology at those ports and places specified in

8 paragraph (3)(A) may be conducted by employ9 ees of the Department of Commerce designated

10 by the Secretary with the concurrence of the

11 Commissioner of Customs or a person des12 ignated by the Commissioner.

13 (B) OTHER AUTHORIZED ACTIONS.—The

14 Secretary may designate employees under the

15 direction of the Assistant Director for Enforce16 ment and Compliance of CECA, in carrying out

17 enforcement authority under this Act, to—

18 (i) execute any warrant or other proc19 ess issued by a court or officer with com20 petent jurisdiction with respect to the en21 forcement of this Act;

22 (ii) make arrests without warrant for

23 any violation of this Act committed in his

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

25 employee has probable cause to believe that
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•S 1846 IS

1 the person to be arrested has committed or

2 is committing such a violation of this Act;

3 and

4 (iii) carry firearms in carrying out

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

6 (3) ENFORCEMENT AUTHORITY OF THE COM7 MISSIONER OF CUSTOMS.—

8 (A) IN GENERAL.—Subject to subpara9 graph (B), the United States Customs Service

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

11 make investigations outside of the United

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

13 seize goods or technology at those ports of

14 entry to or exit from the United States where

15 officers of the Customs Service are authorized

16 by law to conduct such searches, detentions,

17 and seizures, and at those places outside the

18 United States where the Customs Service, pur19 suant to agreements or other arrangements

20 with other countries, is authorized to perform

21 enforcement activities.

22 (B) OTHER AUTHORIZED ACTIONS.—An

23 officer of the United States Customs Service, in

24 carrying out enforcement authority under this

25 Act, may—
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•S 1846 IS

1 (i) stop, search, and examine a vehi2 cle, vessel, aircraft, or person on which or

3 whom such officer has reasonable cause to

4 suspect there are any goods or technology

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

6 exported from the United States in viola7 tion of this Act;

8 (ii) search any package or container

9 in which such officer has reasonable cause

10 to suspect there are any goods or tech11 nology that has been, is being, or is about

12 to be exported from the United States in

13 violation of this Act;

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

15 secure for trial any goods or technology on

16 or about such vehicle, vessel, aircraft, or

17 person, or in such package or container, if

18 such officer has probable cause to believe

19 the goods or technology has been, is being,

20 or is about to be exported from the United

21 States in violation of this Act; and

22 (iv) make arrests without warrant for

23 any violation of this Act committed in the

24 officer’s presence or view or if the officer

25 has probable cause to believe that the per-
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•S 1846 IS

1 son to be arrested has committed or is

2 committing such a violation.

3 The arrest authority conferred by clause (iv) is

4 in addition to any arrest authority provided

5 under other laws.

6 (4) OTHER ENFORCEMENT PROVISIONS.—

7 (A) REFERRAL OF CASES.—All cases in8 volving violations of this Act shall be referred to

9 the Secretary for purposes of determining civil

10 penalties and administrative sanctions under

11 section 8, or to the Attorney General for crimi12 nal action in accordance with this Act.

13 (B) PUBLICATION OF PROCEDURES.—The

14 Secretary, with the concurrence of the Sec15 retary of the Treasury, shall publish in the Fed16 eral Register procedures setting forth, in ac17 cordance with this subsection, the responsibil18 ities of the Department of Commerce and the

19 United States Customs Service in the enforce20 ment of this Act.

21 (C) INFORMATION SHARING.—The Sec22 retary, with the concurrence of the Secretary of

23 the Treasury, may publish procedures for the

24 sharing of information in accordance with sec25 tion 3(g), and procedures for the submission to
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•S 1846 IS

1 the appropriate departments and agencies by

2 private persons of information relating to the

3 enforcement of this Act.

4 (D) REFERENCES.—For purposes of this

5 section, a reference to the enforcement of this

6 Act or to a violation of this Act includes a ref7 erence to the enforcement or a violation of any

8 regulation, order, or license issued under this

9 Act.

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

11 from complying with any requirements under this

12 section because of an assertion of a privilege against

13 self-incrimination, but the immunity provisions of

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

15 apply with respect to any individual who specifically

16 claims such privilege.

17 SEC. 7. COMMERCIAL EXPORT LICENSES AND PROCESSING

18 PROCEDURES.

19 (a) RESPONSIBILITY OF THE SECRETARY.—

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

21 for all export licensing functions required by this

22 Act. All determinations with respect to any export li23 cense application shall be made by the Secretary,

24 subject to the procedures provided in this section.
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•S 1846 IS

1 (2) REFERRAL TO OTHER DEPARTMENTS OR

2 AGENCIES.—The Secretary may seek information

3 and recommendations from any other department or

4 agency of the United States on export license appli5 cations, in accordance with the procedures provided

6 in subsection (c)(2), or as otherwise required under

7 the Atomic Energy Act of 1954. A department or

8 agency reviewing an export license application re9 ferred by the Secretary shall cooperate fully in pro10 viding such information or recommendations. The

11 recommendations made by other departments or

12 agencies shall not be binding on the Secretary in

13 making determinations on export license applications

14 under this Act.

15 (b) COMMERCIAL EXPORT LICENSES.—

16 (1) TYPES OF COMMERCIAL EXPORT LI17 CENSES.—Under such conditions as the Secretary

18 may impose, consistent with the provisions of this

19 Act, the Secretary may require the following types of

20 licenses for exports and reexports of commercial

21 goods and technology controlled under this Act:

22 (A) SPECIFIC EXPORTS AND REEX23 PORTS.—An individual validated license, au24 thorizing a specific export or reexport.
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1 (B) MULTIPLE EXPORTS AND REEX2 PORTS.—Validated licenses authorizing multiple

3 exports or reexports, in lieu of an individual

4 validated license for each such export or reex5 port.

6 (C) TERMS AND CONDITIONS.—(i) The

7 Secretary shall grant a license under this para8 graph on the basis of approval of the appli9 cant’s systems of control for the commercial

10 goods and technology to be exported. The Sec11 retary and, at the request of the Secretary, the

12 Commissioner of Customs, shall perform peri13 odic reviews of license applicants and their com14 pliance with the terms of licenses issued under

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

16 subparagraph (B), the Secretary shall perform

17 periodic audits of license holders in order to as18 sure the integrity and effectiveness of the li19 censing procedures under this section that

20 apply to such licenses.

21 (ii) Requirements for the redesign,

22 reengineering, or substantial modification of

23 standard product models or configurations, and

24 similar requirements shall not be imposed under

25 this Act before any export license application is
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•S 1846 IS

1 approved for the export or reexport of commer2 cial goods or technology to which export or re3 export controls imposed pursuant to an export

4 control regime apply if such goods or tech5 nology are intended for civil end uses, unless

6 such export control regime agrees to such re7 quirements.

8 (2) AUTHORIZATION FOR TECHNICAL DATA.—A

9 validated license authorizing the export or reexport

10 of any commercial goods or technology under this

11 Act shall also authorize the export or reexport of op12 eration technical data related to such goods or tech13 nology, whether or not such data is specifically ref14 erenced in the license or license application, if the

15 technical level of the data does not exceed the level

16 reasonably necessary to install, repair, maintain, in17 spect, operate, or use the goods or technology.

18 (3) REPLACEMENT PARTS.—The Secretary

19 shall not require an individual validated license for

20 replacement parts that are exported or reexported to

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

22 good that has been lawfully exported from the Unit23 ed States.

24 (4) INCORPORATED GOODS OR TECHNOLOGY.—
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1 (A) GOODS CONTAINING CONTROLLED

2 PARTS AND COMPONENTS.—No license may be

3 required under this Act or any other provision

4 of law to export a commercial good solely be5 cause the good contains parts or components

6 the export of which is controlled under this Act

7 if such parts or components—

8 (i) are essential to the functioning of

9 the good;

10 (ii) are customarily included in sales

11 of the good in countries other than con12 trolled countries; and

13 (iii) comprise 25 percent or less of the

14 total value of the good.

15 (B) REEXPORTS.—Except as provided in

16 subparagraph (C), no authority or permission

17 may be required under this Act or any other

18 provision of law to reexport, from any country

19 that is not a member of, or a cooperating coun20 try with respect to, an export control regime

21 certified under section 4(d)(2), any commercial

22 good or technology the export of which is con23 trolled under section 4 when the good or tech24 nology to be reexported is incorporated in an25 other good or technology in that country, and—
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•S 1846 IS

1 (i) the value of the commercial good

2 or technology the export of which is con3 trolled under this Act is 25 percent or less

4 of the total value of the good or technology

5 into which it is incorporated; or

6 (ii) the export of such commercial

7 good or technology from the United States

8 to the destination or enduser of the pro9 posed reexport would require only notifica10 tion to the participating governments of

11 the appropriate export control regime.

12 (C) EMERGENCY CONTROLS.—No author13 ity or permission may be required to reexport

14 from any country a commercial good or tech15 nology the export of which is controlled under

16 section 5 when the good or technology to be re17 exported is incorporated in another good or

18 technology in that country and the value of the

19 good or technology controlled under section 5 is

20 10 percent or less of the total value of the good

21 or technology into which it is incorporated.

22 (5) EXISTING CONTRACTS AND LICENSES.—

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

24 under this Act, prohibit the export or reexport

25 of commercial goods or technology—
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•S 1846 IS

1 (i) in performance of a contract,

2 agreement, or other contractual commit3 ment entered into before the effective date

4 of export or reexport controls imposed

5 under this Act on such goods or tech6 nology, or the date on which the President

7 reports to the Congress under section

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

9 impose emergency controls on the export

10 or reexport of such goods or technology, or

11 (ii) under a validated license or other

12 authorization issued under this Act.

13 (B) EXCEPTION.—The prohibition in sub14 paragraph (A) shall not apply if the President

15 determines and certifies to the Congress that—

16 (i) a breach of the peace poses a seri17 ous and direct threat to the strategic inter18 ests of the United States;

19 (ii) the prohibition or curtailment of

20 exports or reexports (as the case may be)

21 under each such contract, agreement, com22 mitment, license, or authorization will be

23 directly instrumental in remedying the sit24 uation posing the direct threat; and
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•S 1846 IS

1 (iii) such prohibition or curtailment

2 will continue only as long as the direct

3 threat persists.

4 (6) EXCLUSION FOR MEDICINE AND MEDICAL

5 SUPPLIES AND FOR DONATIONS.—This Act does not

6 authorize controls on—

7 (A) medicine or medical supplies; or

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

9 limited to, food, educational materials, seeds

10 and hand tools, medicines and medical supplies,

11 water resources equipment, clothing and shelter

12 materials, and basic household supplies) that

13 are intended to meet basic human needs.

14 (7) PROHIBITION OF FEES FOR PROCESSING

15 EXPORT LICENSE APPLICATIONS.—No fee may be

16 charged in connection with the submission or proc17 essing of an export license application under this

18 Act.

19 (c) PROCEDURES FOR PROCESSING EXPORT LI20 CENSE APPLICATIONS.—

21 (1) INITIAL SCREENING.—All export license ap22 plications required under this Act shall be submitted

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

24 days after the date on which any export license ap-
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•S 1846 IS

1 plication is submitted to the Secretary, the Secretary

2 shall—

3 (A) send the applicant an acknowledgment

4 of the receipt of the application and the date of

5 the receipt;

6 (B) submit to the applicant a written de7 scription of the procedures required by this sec8 tion, the responsibilities of the Secretary with

9 respect to the application, and the rights of the

10 applicant;

11 (C) return the application without action if

12 the application is improperly completed or if ad13 ditional information is required, with sufficient

14 information to permit the application to be

15 properly resubmitted, in which case, if such ap16 plication is resubmitted, it shall be treated as a

17 new application for the purpose of calculating

18 the time periods prescribed in this subsection;

19 and

20 (D) determine whether it is necessary to

21 submit the application to a multilateral review

22 process pursuant to an export control regime

23 and, if so, inform the applicant of such require24 ment.
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•S 1846 IS

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

2 refer an export license application to any other de3 partment or agency for a recommendation under

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

5 after receiving the application, refer the application

6 concurrently to all such departments or agencies. A

7 department or agency reviewing an export license

8 application referred by the Secretary shall have 15

9 days in which to submit to the Secretary its rec10 ommendations on the application. Any department

11 or agency which does not submit its recommenda12 tions within that 15-day period shall be deemed by

13 the Secretary to have no objection to the approval of

14 such application.

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

16 paragraph (6), 30 days after the date of formal fil17 ing with the Secretary of an export license applica18 tion, a license for the transaction specified in the ap19 plication shall become valid and effective and the

20 goods or technology involved are authorized for ex21 port or reexport pursuant to such license, unless—

22 (A) the application has been otherwise ap23 proved by the Secretary, in which case it shall

24 be valid and effective according to the terms of

25 the approval;
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•S 1846 IS

1 (B) the application has been denied by the

2 Secretary under this section and the applicant

3 has been so informed; or

4 (C) the Secretary requires additional time,

5 not to exceed 30 days, for matters related to

6 the consideration of the export license applica7 tion, including, but not limited to, performing

8 pre-license investigations and obtaining govern9 ment-to-government assurances with respect to

10 reexports or other matters, and so informs the

11 applicant.

12 In a case in which subparagraph (C) applies, at the

13 end of the 30-day period described in such subpara14 graph, the license for the transaction specified in the

15 application shall become valid and effective and the

16 goods and technology are authorized for export or

17 reexport pursuant to such license, unless subpara18 graph (A) or (B) applies during such 30-day period.

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

20 the Secretary has determined that a license applica21 tion should be denied, the applicant shall be in22 formed in writing, not later than 5 days after such

23 determination is made, of—

24 (A) the determination;
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•S 1846 IS

1 (B) the statutory basis for the proposed

2 denial;

3 (C) the reasons for such denial, with ref4 erences to the criteria set forth in sections 4

5 and 5;

6 (D) what, if any, modifications in, or re7 strictions on, the goods or technology for which

8 the license was sought would allow the export

9 or reexport of the goods or technology to be

10 compatible with controls imposed under this

11 Act;

12 (E) which officers and employees of the

13 Department of Commerce who are familiar with

14 the application will be made reasonably avail15 able to the applicant for discussions with regard

16 to such modifications or restrictions, if appro17 priate;

18 (F) to the extent consistent with the na19 tional security and foreign policy of the United

20 States, the specific considerations which led to

21 the determination to deny the application; and

22 (G) the availability of appeal procedures.

23 The Secretary shall allow the applicant not less than

24 30 days to respond to the Secretary’s determination

25 before the license application is denied. If any deci-
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•S 1846 IS

1 sion on a license application is deferred inconsistent

2 with the provisions of this subsection, the applicant

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

4 after such deferral.

5 (5) RECORDKEEPING.—The Secretary shall

6 make and keep records of all advice and rec7 ommendations given by Federal departments and

8 agencies, and decisions made by the Department of

9 Commerce, in connection with any export license ap10 plication or revision of an export license application

11 under this Act, including the factual and analytical

12 basis of the advice, recommendations, or decisions.

13 (6) MULTILATERAL CONTROLS.—

14 (A) NOTICE OF MULTILATERAL REVIEW.—

15 In any case in which an export license applica16 tion that has been finally approved is required

17 to be submitted to a multilateral review process

18 pursuant to an export control regime, the li19 cense shall not be issued under paragraph (3),

20 but the Secretary shall notify the applicant of

21 the approval of the application (and the date of

22 such approval) by the Secretary subject to such

23 multilateral review. The license shall be issued

24 upon approval of the application under such

25 multilateral review.
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•S 1846 IS

1 (B) ISSUANCE OF LICENSE AFTER 30

2 DAYS.—If such multilateral review has not re3 sulted in a determination with respect to the

4 application within 30 days after the application

5 is approved, the Secretary’s approval of the li6 cense shall be final and the license shall be is7 sued, unless a longer review period is specifi8 cally required by the established procedures of

9 the applicable export control regime.

10 (7) CHANGES IN REQUIREMENTS FOR APPLICA11 TIONS.—Except as provided in paragraph (1)(C), in

12 any case in which, after an export license application

13 is submitted, the Secretary changes the require14 ments for such a license application, the Secretary

15 may request appropriate additional information of

16 the applicant, but the Secretary may not return the

17 application to the applicant without action because it

18 fails to meet the changed requirements.

19 (d) APPEAL AND COURT ACTIONS.—

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

21 appropriate procedures for any applicant to appeal

22 to the Secretary the denial of an export license ap23 plication under this Act.

24 (2) PUBLICATION AND INDEXING OF APPEAL

25 DECISIONS.—The Secretary shall, to the greatest ex-
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•S 1846 IS

1 tent practicable, taking into account restrictions on

2 the disclosure of classified or confidential informa3 tion, publish in the Federal Register and index deci4 sions on appeals of license denials under paragraph

5 (1).

6 (3) TIME DELAY.—In any case in which any ac7 tion prescribed in this section is not taken on an ex8 port license application within the time periods es9 tablished by subsection (c) (except in the case of a

10 time period extended under subsection (c)(3)(C) of

11 which the applicant is notified), the applicant may

12 file a petition with the Secretary requesting compli13 ance with the requirements of subsection (c). When

14 such petition is filed, the Secretary shall take imme15 diate steps to correct the situation giving rise to the

16 petition and shall immediately notify the applicant of

17 such steps.

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

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

20 processing of the application has not been brought

21 into conformity with the requirements of subsection

22 (c), or the application has been brought into con23 formity with such requirements but the Secretary

24 has not so notified the applicant, the applicant may

25 bring an action in an appropriate United States dis-
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•S 1846 IS

1 trict court for a restraining order, a temporary or

2 permanent injunction, or other appropriate relief, to

3 require compliance with the requirements of sub4 section (c). The United States district courts shall

5 have jurisdiction to provide such relief, as appro6 priate.

7 (5) FINAL ORDERS; APPEAL.—The determina8 tion of the Secretary on appeals under this sub9 section shall be final and may be appealed in accord10 ance with section 8(c).

11 (e) OTHER INQUIRIES.—

12 (1) CLASSIFICATION REQUESTS.—In any case

13 in which the Secretary receives a written request

14 asking for the proper classification of a good or

15 technology on the control index, the Secretary shall,

16 not more than 10 working days after receiving the

17 request, inform the person making the request of the

18 proper classification.

19 (2) APPLICABILITY OF REQUIREMENT.—In any

20 case in which the Secretary receives a written re21 quest for information about the applicability of ex22 port license requirements under this Act to a pro23 posed transaction or series of transactions, the Sec24 retary shall, not more than 30 days after receiving
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•S 1846 IS

1 the request, reply with that information to the per2 son making the request.

3 (3) PUBLICATION OF CLASSIFICATION DETER4 MINATIONS.—The Secretary shall, to the greatest

5 extent practicable, taking into account restrictions

6 on the disclosure of classified or confidential infor7 mation, publish in the Federal Register classification

8 determinations made under paragraph (1).

9 SEC. 8. PENALTIES, ADMINISTRATIVE PROCEDURES, AND

10 SANCTIONS.

11 (a) PENALTIES FOR VIOLATIONS.—

12 (1) CRIMINAL PENALTIES.—

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

14 subparagraph (B), whoever knowingly violates

15 or conspires to or attempts to violate any provi16 sion of this Act or any regulation, order, or li17 cense issued under this Act shall be fined not

18 more than 5 times the value of the exports in19 volved or $50,000, whichever is greater, or im20 prisoned for not more than 5 years, or both.

21 (B) WILLFUL VIOLATIONS.—Whoever will22 fully violates or conspires to or attempts to vio23 late any provision of this Act or any regulation,

24 order, or license issued under this Act, with

25 knowledge that the exports involved will be used
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•S 1846 IS

1 for the benefit of, or that the destination or in2 tended destination of the goods or technology

3 involved is, any controlled country or controlled

4 enduser—

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

6 shall be fined not more than 10 times the

7 value of the exports involved or

8 $2,000,000, whichever is greater; and

9 (ii) in the case of an individual, shall

10 be fined not more than $500,000, or im11 prisoned for not more than 10 years, or

12 both.

13 (C) FAILURE TO REPORT MISUSE UNDER

14 LICENSE.—Any person who is issued a vali15 dated license under this Act for the export of

16 any commercial good or technology to a con17 trolled country and who, with knowledge that

18 such a good or technology is being used by such

19 controlled country for military or intelligence20 gathering purposes, or for purposes of enhanc21 ing capabilities described in section 4(a)(1)(B),

22 contrary to the conditions under which the li23 cense was issued, willfully fails to report such

24 use, shall be subject to the penalties set forth

25 in subparagraph (B).
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1 (D) INTENT TO VIOLATE CONTROLS.—Any

2 person who possesses any commercial goods or

3 technology—

4 (i) with the intent to export or reex5 port such goods or technology in violation

6 of an export or reexport control imposed

7 under this Act, or any regulation, order, or

8 license issued with respect to such control,

9 or

10 (ii) knowing or having reason to be11 lieve that the goods or technology would be

12 so exported or reexported,

13 shall be subject to the penalties set forth in

14 subparagraph (B).

15 (E) EVASION OF CONTROLS.—Any person

16 who takes any action with the intent to evade

17 the provisions of this Act or any regulation,

18 order, or license issued under this Act shall be

19 subject to the penalties set forth in paragraph

20 (B).

21 (2) CIVIL PENALTIES.—

22 (A) IN GENERAL.—The Secretary may im23 pose a civil penalty of not more than $250,000

24 for each violation of this Act or any regulation,

25 order, or license issued under this Act, either in
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•S 1846 IS

1 addition to or in lieu of any other liability or

2 penalty which may be imposed for such viola3 tion.

4 (B) PAYMENT OF PENALTIES.—The pay5 ment of any penalty imposed under this para6 graph may be made a condition, for a period of

7 not more than 1 year after the imposition of

8 such penalty, to the granting, restoration, or

9 continuing validity of any license, permission, or

10 privilege granted or to be granted under this

11 Act to the person upon whom such penalty is

12 imposed. In addition, the payment of any pen13 alty imposed under this paragraph may be de14 ferred or suspended in whole or in part for a

15 period of time not longer than any probation

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

17 imposed upon such person. Such a deferral or

18 suspension shall not operate as a bar to the col19 lection of the penalty in the event that the con20 ditions of the suspension, deferral, or probation

21 are not fulfilled.

22 (C) REFUNDS.—Any amount paid in satis23 faction of any penalty imposed under this para24 graph, and any amounts realized from the for25 feiture of any property interest or proceeds
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•S 1846 IS

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

2 the Treasury as a miscellaneous receipt. The

3 head of the department or agency concerned

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

5 penalty imposed under this paragraph within 2

6 years after payment, on the ground of a mate7 rial error of fact or law in the imposition of the

8 penalty. Notwithstanding section 1346(a) of

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

10 refund of any such penalty may be maintained

11 in any court.

12 (D) ACTIONS FOR RECOVERY OF PEN13 ALTIES.—In the event of the failure of any per14 son to pay a penalty imposed under this para15 graph, a civil action for the summary collection

16 of the penalty may, in the discretion of the

17 head of the department or agency concerned, be

18 brought in an appropriate United States dis19 trict court in the name of the United States.

20 (E) CIVIL PENALTY STANDARDS.—The

21 Secretary may by regulation provide standards

22 for establishing levels of civil penalty under this

23 paragraph based upon the seriousness of the

24 violation, the culpability of the violator, and the
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•S 1846 IS

1 violator’s record of cooperation with the Gov2 ernment in disclosing the violation.

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

4 paragraph shall limit the power of the Secretary to

5 define by regulations violations under this Act.

6 (b) ADMINISTRATIVE SANCTIONS.—

7 (1) SUSPENSION, REVOCATION, AND DENIAL OF

8 EXPORT PRIVILEGES.—The Secretary may suspend,

9 revoke, or deny the export or reexport privileges of

10 any person who violates or conspires to or attempts

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

12 order, or license issued under this Act.

13 (2) ELIGIBILITY FOR LICENSES.—No person

14 convicted of a violation of this Act (or any regula15 tion, order, or license issued under this Act), any

16 regulation, license, or order issued under the Inter17 national Emergency Economic Powers Act, section

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

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

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

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

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

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

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

25 The Secretary may revoke any export license under
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•S 1846 IS

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

2 time of the conviction.

3 (3) RELATED PERSONS.—The Secretary may

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

5 with respect to any person related, through affili6 ation, ownership, control, or position of responsibil7 ity, to any person who has been sanctioned under

8 this subsection, upon a showing of such relationship

9 with the sanctioned party and a finding that such

10 action is necessary to prevent an imminent violation

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

12 under this Act, and subject to the procedures set

13 forth in subsection (c).

14 (4) FORFEITURE OF PROPERTY INTEREST AND

15 PROCEEDS.—

16 (A) IN GENERAL.—Any person who is con17 victed under subsection (a)(1) of a violation of

18 an export or reexport control imposed under

19 this Act or any regulation, order, or license is20 sued under this Act shall, in addition to any

21 other penalty, forfeit to the United States—

22 (i) any of that person’s interest in, se23 curity of, claim against, or property or

24 contractual rights of any kind in the goods
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•S 1846 IS

1 or tangible items that were the subject of

2 the violation;

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

4 security of, claim against, or property or

5 contractual rights of any kind in tangible

6 property that was used in the export or re7 export or attempt to export or reexport

8 that was the subject of the violation; and

9 (iii) any of that person’s property con10 stituting or derived from any proceeds ob11 tained directly or indirectly as a result of

12 the violation.

13 (B) PROCEDURE.—The procedures in any

14 forfeiture under this paragraph, and the duties

15 and authority of the courts of the United States

16 and the Attorney General with respect to any

17 forfeiture action under this paragraph or with

18 respect to any property that may be subject to

19 forfeiture under this paragraph, shall be gov20 erned by the provisions of section 1963 of title

21 18, United States Code.

22 (c) ADMINISTRATIVE PROCEDURE AND JUDICIAL RE23 VIEW.—
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•S 1846 IS

1 (1) ADMINISTRATIVE PROCEDURES RELATING

2 TO CIVIL PENALTIES AND ADMINISTRATIVE SANC3 TIONS.—

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

5 which a civil penalty or administrative sanction

6 (other than a temporary denial order) is sought

7 under this section, the charged party is entitled

8 to receive a formal complaint specifying the

9 charges and, at his or her request, to contest

10 the charges in a hearing before an administra11 tive law judge.

12 (B) HEARING PROCEDURES.—Subject to

13 the provisions of this subsection, any such hear14 ing shall be conducted in accordance with sec15 tions 556 and 557 of title 5, United States

16 Code.

17 (C) PRESENTATION OF EVIDENCE IN CAM18 ERA.—In any such hearing the Government

19 may, with the approval of the administrative

20 law judge, present evidence in camera in the

21 presence of the charged party or his or her rep22 resentative.

23 (D) POST-HEARING ACTION BY THE SEC24 RETARY.—After the hearing, the administrative

25 law judge shall make findings of fact and con-
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•S 1846 IS

1 clusions of law in a written decision, which shall

2 be referred to the Secretary. The Secretary

3 shall, in a written order, affirm, modify, or va4 cate the decision of the administrative law

5 judge not later than 30 days after receiving the

6 decision.

7 (E) TIMING.—The proceedings described

8 in this subsection shall be concluded not later

9 than 1 year after the complaint is submitted,

10 unless the administrative law judge extends

11 such period for good cause shown.

12 (F) FINAL ORDERS; APPEAL.—The order

13 of the Secretary under subparagraph (D) shall

14 be final and may be appealed in accordance

15 with paragraph (4).

16 (2) ADMINISTRATIVE PROCEDURES FOR THE

17 IMPOSITION OF TEMPORARY DENIAL ORDERS.—

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

19 is necessary, in the public interest, to prevent

20 an imminent violation of this Act or any regula21 tion, order, or license issued under this Act, the

22 Secretary may, without a hearing, issue an

23 order temporarily denying United States export

24 or reexport privileges (hereafter in this sub25 section referred to as a ‘‘temporary denial
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•S 1846 IS

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

2 may be effective no longer than 180 days (un3 less renewed in writing by the Secretary for an

4 additional period of not more than 180 days) in

5 order to prevent such an imminent violation, ex6 cept that a temporary denial order may be re7 newed only after notice and an opportunity for

8 a prompt hearing is provided.

9 (B) CONTENTS.—A temporary denial order

10 shall define the imminent violation and state

11 why the temporary denial order was granted

12 without a hearing. The person or persons sub13 ject to the issuance or renewal of a temporary

14 denial order may file an appeal of the issuance

15 or renewal of the temporary denial order with

16 an administrative law judge who shall, not more

17 than 10 working days after the appeal is filed,

18 recommend that the temporary denial order be

19 affirmed, modified, or vacated. Parties may

20 submit briefs and other material to the judge.

21 The recommendation of the administrative law

22 judge shall be submitted to the Secretary who

23 shall either accept, reject, or modify the rec24 ommendation by written order not more than 5

25 working days after receiving the recommenda-
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•S 1846 IS

1 tion. The written order of the Secretary under

2 the preceding sentence shall be final and may

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

4 temporary denial order shall be affirmed only if

5 it is reasonable to believe that the order is re6 quired in the public interest to prevent an im7 minent violation of this Act or any regulation,

8 order, or license issued under this Act. All ma9 terials submitted to the administrative law

10 judge and the Secretary under this paragraph

11 shall constitute the administrative record for

12 purposes of review by the courts.

13 (3) ADMINISTRATIVE LAW JUDGES.—Adminis14 trative law judges referred to in paragraphs (1) and

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

16 among those considered qualified for selection and

17 appointment under section 3105 of title 5, United

18 States Code.

19 (4) JUDICIAL REVIEW.— Any final agency ac20 tion under this Act may be reviewed by appeal to the

21 United States Court of Appeals for the Federal Cir22 cuit.

23 (d) SANCTIONS AGAINST CERTAIN FOREIGN PER24 SONS.—
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1 (1) IN GENERAL.—Except as provided in para2 graph (5), the President may impose the sanctions

3 described in paragraph (3) if the President deter4 mines that a person has knowingly and materially

5 contributed—

6 (A) through the export from the United

7 States of any commercial goods or technology

8 that are subject to the jurisdiction of the

9 United States under this Act; or

10 (B) through the export from any other

11 country of any commercial goods or technology

12 that constitutes a violation of any regulation is13 sued by that country to control exports pursu14 ant to an export control regime;

15 to the efforts by any controlled country or controlled

16 enduser to use, develop, produce, stockpile, or other17 wise acquire chemical or biological weapons, any nu18 clear explosive device, or any missile equipment or

19 technology.

20 (2) PERSONS AGAINST WHICH SANCTIONS ARE

21 TO BE IMPOSED.—Sanctions shall be imposed under

22 paragraph (1) on—

23 (A) the person with respect to whom the

24 President makes the determination described in

25 that paragraph;
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1 (B) any successor entity to that person;

2 and

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

4 that person if that parent, subsidiary, or affili5 ate knowingly and materially contributed to the

6 activities that were the basis of that determina7 tion.

8 (3) SANCTIONS.—The sanctions to be imposed

9 under paragraph (1) are—

10 (A) denial of licenses to the sanctioned

11 person to export or reexport, and denial of li12 censes to United States persons to export or re13 export to the sanctioned person, commercial

14 goods and technology to the same extent as the

15 export or reexport of such goods or technology

16 is controlled under this Act;

17 (B) a prohibition on contracting with, and

18 procurement of products and services from, the

19 sanctioned person by any department, agency,

20 of instrumentality of the United States Govern21 ment; and

22 (C) a prohibition on the importation into

23 the United States of products produced by the

24 sanctioned person.
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1 (4) CONSULTATIONS WITH FOREIGN GOVERN2 MENTS OF JURISDICTION.—If the President makes a

3 determination in paragraph (1) with respect to a

4 foreign person, the President shall immediately initi5 ate consultations with the government of the country

6 of which that foreign person is a national with re7 spect to the imposition of sanctions under this sec8 tion.

9 (5) INAPPLICABILITY.—Sanctions set forth in

10 paragraph (3) may not be imposed on a foreign per11 son with respect to acts described in paragraph (1)

12 if the government of the country of which that for13 eign person is a national is a member of an export

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

15 cooperating country with respect to such regime, un16 less a determination made with respect to such

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

18 (6) TERMINATION OF SANCTIONS.—Sanctions

19 imposed under this subsection shall apply for a pe20 riod at least one year beginning on the date on

21 which the sanctions are imposed. Such sanctions

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

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

24 shall cease to apply after the end of the 1-year pe25 riod described in the first sentence if the President
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1 determines that the person with respect to whom the

2 determination was made under paragraph (1) has

3 ceased all activities described in paragraph (1) that

4 were the subject of the violation and has taken ap5 propriate steps to ensure that such activities will not

6 take place in the future.

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

8 limits—

9 (1) the availability of other administrative or

10 judicial remedies with respect to violations of this

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

12 this Act;

13 (2) the authority to compromise and settle ad14 ministrative proceedings brought with respect to vio15 lations of this Act or any regulation, order, or li16 cense issued under this Act; or

17 (3) the authority to compromise, remit, or miti18 gate seizures and forfeitures under section 1(b) of

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

20 401(b)).

21 SEC. 9. GENERALLY AVAILABLE SOFTWARE.

22 Section 17 of the Export Administration Act of 1979

23 (50 U.S.C. App. 2416) is amended by adding at the end

24 the following new subsection:

25 ‘‘(g) COMPUTERS AND RELATED EQUIPMENT.—
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1 ‘‘(1) GENERAL RULE.—Subject to paragraphs

2 (2) and (3), the Secretary shall have exclusive au3 thority to control exports of all computer hardware,

4 software, and technology for information security

5 (including encryption), except that which is specifi6 cally designed or modified for military use, including

7 command, control, and intelligence applications.

8 ‘‘(2) ITEMS NOT REQUIRING LICENSES.—No

9 validated license may be required, except pursuant

10 to the Trading With The Enemy Act or the Inter11 national Emergency Economic Powers Act (but only

12 to the extent that the authority of such Act is not

13 exercised to extend controls imposed under this Act),

14 for the export or reexport of—

15 ‘‘(A) any software, including software with

16 encryption capabilities, that is—

17 ‘‘(i) generally available, as is, and is

18 designed for installation by the purchaser;

19 or

20 ‘‘(ii) in the public domain or publicly

21 available because it is generally accessible

22 to the interested public in any form; or

23 ‘‘(B) any computing device solely because

24 it incorporates or employs in any form software

25 (including software with encryption capabilities)
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1 exempted from any requirement for a validated

2 license under subparagraph (A).

3 ‘‘(3) SOFTWARE WITH ENCRYPTION CAPABILI4 TIES.—The Secretary shall authorize the export or

5 reexport of software with encryption capabilities for

6 nonmilitary end-uses in any country to which ex7 ports of software of similar capability are permitted

8 for use by financial institutions not controlled in fact

9 by United States persons, unless there is substantial

10 evidence that such software will be—

11 ‘‘(A) diverted to a military end-use or an

12 end-use supporting international terrorism;

13 ‘‘(B) modified for military or terrorist end14 use; or

15 ‘‘(C) reexported without requisite United

16 States authorization.

17 ‘‘(4) DEFINITIONS.—As used in this sub18 section—

19 ‘‘(A) the term ‘generally available’ means,

20 in the case of software (including software with

21 encryption capabilities), software that is offered

22 for sale, license, or transfer to any person with23 out restriction through any commercial means,

24 including, but not limited to, over-the-counter

25 retail sales, mail order transactions, phone
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1 order transactions, electronic distribution, or

2 sale on approval;

3 ‘‘(B) the term ‘as is’ means, in the case of

4 software (including software with encryption ca5 pabilities), a software program that is not de6 signed, developed, or tailored by the software

7 company for specific purchasers, except that

8 such purchasers may supply certain installation

9 parameters needed by the software program to

10 function properly with the purchaser’s system

11 and may customize the software program by

12 choosing among options contained in the soft13 ware program;

14 ‘‘(C) the term ‘is designed for installation

15 by the purchaser’ means, in the case of soft16 ware (including software with encryption capa17 bilities)—

18 ‘‘(i) the software company intends for

19 the purchaser (including any licensee or

20 transferee), who may not be the actual

21 program user, to install the software pro22 gram on a computing device and has sup23 plied the necessary instructions to do so,

24 except that the company may also provide

25 telephone help line services for software in-
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1 stallation, electronic transmission, or basic

2 operations; and—

3 ‘‘(ii) that the software program is de4 signed for installation by the purchaser

5 without further substantial support by the

6 supplier;

7 ‘‘(D) the term ‘computing device’ means a

8 device which incorporates one or more

9 microprocessor-based central processing units

10 that can accept, store, process or provide out11 put of data; and

12 ‘‘(E) the term ‘computer hardware’, when

13 used in conjunction with information security,

14 includes, but is not limited to, computer sys15 tems, equipment, application-specific assem16 blies, modules, and integrated circuits.’’.

17 SEC. 10. DEFINITIONS; REPORTS.

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

19 this Act, as used in this Act:

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

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

22 to restrict the sale of chemical weapons precursors

23 and equipment, including, as of the date of enact24 ment of this Act, Australia, Austria, Belgium, Can25 ada, Denmark, Finland, France, Germany, Greece,
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1 Ireland, Italy, Japan, Luxembourg, the Netherlands,

2 New Zealand, Norway, Portugal, Spain, Sweden,

3 Switzerland, the United Kingdom, and the United

4 States.

5 (2) CECA.—The term ‘‘CECA’’ means the

6 Commercial Export Control Administration estab7 lished in section 6(c).

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

9 Coordinating Committee for Multilateral Export

10 Controls, a non-treaty organization created in 1949

11 that—

12 (A) cooperatively restricts exports of goods

13 and technology to certain countries;

14 (B) collectively determines the goods and

15 technology that are so restricted and the des16 tinations to which exports are so restricted; and

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

18 Act, includes Australia, Belgium, Canada, Den19 mark, Finland, France, Germany, Greece, Italy,

20 Japan, Luxembourg, the Netherlands, Norway,

21 Portugal, Spain, Sweden, Turkey, the United

22 Kingdom, and the United States.

23 (4) COMMERCIAL GOODS AND TECHNOLOGY.—

24 The term ‘‘commercial goods and technology’’ means
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•S 1846 IS

1 goods and technology that were developed or are em2 ployed for bona fide civilian enduses.

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

4 means the Commercial Export Control Policy Com5 mittee established in section 6(b).

6 (6) CONTROL INDEX.—The term ‘‘control

7 index’’ means the United States Commercial Export

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

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

10 means capable of being made subject to an effective

11 prohibition or significant restriction on exports and

12 reexports. A good or technology shall not be consid13 ered to be controllable unless it is—

14 (A) manufactured or sold by only a modest

15 number of suppliers who can be positively iden16 tified;

17 (B) consumed or used by only a modest

18 number of endusers who can be positively iden19 tified and whose export activities can be con20 trolled; and

21 (C) individually traceable or not easily con22 cealed or disguised.

23 (8) CONTROLLED COUNTRY AND CONTROLLED

24 ENDUSER.—The term—
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1 (A) ‘‘controlled country’’ means a country

2 identified under section 4(b)(4); and

3 (B) ‘‘controlled enduser’’ means an

4 enduser identified under section 4(b)(4).

5 (9) COOPERATING COUNTRY.—The term ‘‘co6 operating country’’ means a country which has en7 tered into an agreement with the United States or

8 an export control regime on maintaining export re9 strictions comparable in practice to those maintained

10 by such export control regime.

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

12 the intended application or use of an item as rep13 resented to an export license applicant by the im14 porter of the item in another country.

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

16 the person located abroad who is the true party in

17 interest in actually receiving an export for the end18 use designated for the export.

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

20 actual shipment, transfer, or transmission of goods

21 or technology out of the United States.

22 (12) EXPORT CONTROL REGIME.—The term

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

24 controls agreed to and maintained by the United

25 States and one or more other countries and includes
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•S 1846 IS

1 COCOM, the Australia Group, the MTCR, and the

2 Nuclear Suppliers Group.

3 (13) EXPORT LICENSE APPLICATION.—The

4 term ‘‘export license application’’ means a request

5 for permission or authorization to export or reexport

6 a commercial good or technology the export of which

7 is controlled under this Act.

8 (14) FOREIGN AVAILABILITY.—The term ‘‘for9 eign availability’’ means the availability within con10 trolled countries or to controlled countries or con11 trolled endusers without restriction from sources

12 outside the United States of commercial goods and

13 technology that would reasonably be considered to

14 substitute for those produced in the United States

15 or other countries that participate with the United

16 States in export control regimes so as to render ex17 port and reexport controls imposed by the United

18 States or such regimes on such goods or technology

19 so produced ineffective in achieving their intended

20 purpose. A determination of foreign availability of a

21 good or technology from sources outside the United

22 States shall be made only after considering the avail23 ability of such good or technology—

24 (A) within a controlled country;
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•S 1846 IS

1 (B) from any country from which exports

2 to a controlled country or controlled enduser of

3 the good or technology are not restricted; and

4 (C) from countries that participate with

5 the United States in export control regimes to

6 the extent that export and reexport restrictions

7 on the good or technology maintained by such

8 countries are determined by the Secretary to be

9 ineffective.

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

11 person’’ means—

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

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

14 as defined in section 274B of the Immigration

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

16 and

17 (B) a corporation, partnership, or other

18 entity that is created or organized under the

19 laws of a foreign country or that has its prin20 cipal place of business outside the United

21 States.

22 (16) GOOD.—The term ‘‘good’’ means any arti23 cle, natural or manmade substance, material, supply,

24 or manufactured product, including inspection and

25 test equipment, and excluding technical data.
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•S 1846 IS

1 (17) MISSILE TECHNOLOGY CONTROL REGIME;

2 MTCR.—The term ‘‘Missile Technology Control Re3 gime’’ or ‘‘MTCR’’ means an export control regime

4 based on the policy statement between the United

5 States, the United Kingdom, the Federal Republic of

6 Germany, France, Italy, Canada, and Japan, an7 nounced on April 16, 1987, to restrict sensitive mis8 sile-relevant transfers based on the MTCR Annex,

9 and any amendments thereto, which, as of the date

10 of enactment of this Act, includes the each of those

11 countries and Australia, Austria, Belgium, Den12 mark, Finland, Luxembourg, the Netherlands, Nor13 way, Sweden, New Zealand, and Spain.

14 (18) MISSILE EQUIPMENT OR TECHNOLOGY;

15 MTCR EQUIPMENT OR TECHNOLOGY.—The terms

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

17 equipment or technology’’ mean those items listed in

18 the MTCR Annex.

19 (19) MTCR ANNEX.—The term ‘‘MTCR

20 Annex’’ means the Guidelines and Equipment and

21 Technology Annex of the MTCR, and any amend22 ments thereto.

23 (20) NON-REGIME COUNTRY.—The term ‘‘non24 regime country’’ means a country that is not a mem-
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•S 1846 IS

1 ber of an export control regime and is not a cooper2 ating country.

3 (21) NUCLEAR SUPPLIERS GROUP.—The term

4 ‘‘Nuclear Suppliers Group’’ means a group of coun5 tries that—

6 (A) in 1978, committed themselves to pro7 hibit the export of certain nuclear-related goods

8 and technology unless the importing country

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

10 acceptance of safeguards by the International

11 Atomic Energy Agency; and

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

13 Act, is comprised of Australia, Austria, Bel14 gium, Bulgaria, Canada, Czech Republic, Den15 mark, Finland, France, Germany, Greece, Hun16 gary, Ireland, Italy, Japan, Luxembourg, the

17 Netherlands, Norway, Poland, Portugal, Roma18 nia, Russia, Slovak Republic, Spain, Sweden,

19 Switzerland, the United Kingdom, and the

20 United States.

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

22 singular and the plural and any individual, partner23 ship, corporation, or other form of association, in24 cluding any government or agency thereof.
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1 (23) REEXPORT.—The term ‘‘reexport’’ means

2 an actual shipment, transfer, or transmission of

3 U.S.-origin goods or technology from one foreign

4 country to another.

5 (24) MEMBER OF AN EXPORT CONTROL RE6 GIME.—The term ‘‘member of an export control re7 gime’’ means a country that is a participant in that

8 regime.

9 (25) SECRETARY.—The term ‘‘Secretary’’

10 means the Secretary of Commerce.

11 (26) SECURITY CONTROL LIST.—The term ‘‘se12 curity control list’’ means the list established under

13 section 4(b).

14 (27) TECHNOLOGY.—The term ‘‘technology’’

15 means the information and know how (whether in

16 tangible form, such as models, prototypes, drawings,

17 sketches, diagrams, blueprints, or manuals, or in in18 tangible form, such as training or technical services)

19 that can be used to design, produce, manufacture,

20 utilize, or reconstruct goods, including computer

21 software and technical data, but not the goods them22 selves.

23 (28) UNITED STATES.—The term ‘‘United

24 States’’ means the States of the United States, the

25 District of Columbia, and any commonwealth, terri-
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•S 1846 IS

1 tory, dependency, or possession of the United States,

2 and includes the outer Continental Shelf, as defined

3 in section 2(a) of the Outer Continental Shelf Lands

4 Act (43 U.S.C. 1331(a)).

5 (29) UNITED STATES PERSON.—The term

6 ‘‘United States person’’ means—

7 (A) any United States resident or national,

8 including any ‘‘protected individual’’ as defined

9 in section 274B of the Immigration and Na10 tionality Act (8 U.S.C. 1324b(a)(3)), but not

11 including an individual resident outside the

12 United States and employed by other than a

13 United States person;

14 (B) any domestic concern (including any

15 permanent domestic establishment of any for16 eign concern); and

17 (C) any foreign subsidiary or affiliate (in18 cluding any permanent foreign establishment)

19 of any domestic concern which is controlled in

20 fact by such domestic concern, as determined

21 under regulations of the President.

22 (30) U.S. ORIGIN.—The term ‘‘U.S.-origin’’

23 means, with respect to a good or technology, that

24 the good or technology, when imported into a foreign
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•S 1846 IS

1 country, is treated as a product of the United States

2 for purposes of that country’s customs laws.

3 (31) WEAPONS OF MASS DESTRUCTION.—The

4 term ‘‘weapons of mass destruction’’ refers to chemi5 cal, biological, and nuclear weapons, and missiles ca6 pable of delivering such weapons.

7 (b) ANNUAL REPORT.—Not later than December 31

8 of each year, the Secretary shall submit to the Congress

9 a report on the administration of this Act during the pre10 ceding fiscal year. Such report shall include detailed infor11 mation with respect to—

12 (1) the implementation of the policies set forth

13 in section 2;

14 (2) export licensing activities under sections 4

15 and 5, and any changes in the exercise of the au16 thorities contained in those sections, including a re17 port on all export license applications pending be18 yond the deadlines contained in section 7;

19 (3) designations under section 4(a)(3) of con20 trolled countries and controlled endusers, and any

21 changes in such designations;

22 (4) the results, in as much detail as may be in23 cluded consistent with the national security and the

24 need to maintain the confidentiality of proprietary
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•S 1846 IS

1 information, of the review and revision of the control

2 index required by section 3(b)(4);

3 (5) any emergency sanctions imposed under

4 section 5(a), and the results of negotiations required

5 by section 5(a)(3)(F);

6 (6) determinations of foreign availability made

7 under section 3(g), the criteria used to make such

8 determinations, and the removal of any export or re9 export controls as a result of such determinations;

10 (7) consultations with and recommendations of

11 the industry advisory committees established under

12 section 6(d) and the use made of the advice given

13 by such committees;

14 (8) organizational and procedural changes un15 dertaken in furtherance of the policies set forth in

16 this Act, including changes to increase the efficiency

17 of the export licensing process; and

18 (9) violations, enforcement activities, and any

19 sanctions imposed under section 8.

20 SEC. 11. EFFECT ON OTHER ACTS; CONFORMING AMEND21 MENTS.

22 (a) IN GENERAL.—To the extent provided in this

23 Act, this Act shall be construed to modify, repeal, super24 sede, and otherwise affect the provisions of other laws au-
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1 thorizing control over exports of commercial goods and

2 technology.

3 (b) COORDINATION OF CONTROLS.—

4 (1) NUCLEAR NON-PROLIFERATION ACT OF

5 1978.—The requirement in section 309(c) of the Nu6 clear Non-Proliferation Act of 1978 for procedures

7 that provide for prior consultations with other agen8 cies, and any procedure published by the President

9 pursuant to that section, shall be deemed to be met

10 by the deliberations of the Committee regarding the

11 policy for exports and reexports of goods and tech12 nology to which such section 309(c) applies.

13 (2) AUTHORITY UNDER OTHER ACTS.—The au14 thority granted to the President under section

15 203(a)(1)(B) of the International Emergency Eco16 nomic Powers Act (50 U.S.C. 1702(a)(1)(B)) and

17 section 5(b)(1)(B) of the Trading with the Enemy

18 Act (50 U.S.C. App. 5(b)(1)(B)) with respect to li19 censing or control of exports and reexports of com20 mercial goods and technology and related services

21 shall be delegated to the Secretary.

22 (c) COMMODITY JURISDICTION.—

23 (1) IN GENERAL.—Notwithstanding any other

24 provision of law—
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1 (A) an item agreed for control on the

2 International Munitions List of COCOM shall

3 be subject to control under the Arms Export

4 Control Act and not under this Act;

5 (B) except as provided in paragraphs (2)

6 and (4), an item which is on the International

7 Industrial List of COCOM shall be subject to

8 control under this Act and not under the Arms

9 Export Control Act; and

10 (C) no item may be included on both the

11 security control list and the United States Mu12 nitions List after publication of the lists re13 quired under paragraph (3) and resolution of

14 any dispute with respect to such lists under

15 paragraph (4).

16 (2) EXCEPTIONS.—

17 (A) An item described in subparagraph (B)

18 that is not on the International Munitions List

19 may be subject to control under the Arms Ex20 port Control Act—

21 (i)(I) for a period of 9 months after

22 the date on which the United States pro23 poses to COCOM that the item be added

24 to the International Munitions List, and
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•S 1846 IS

1 (II) for an additional 9-month period,

2 but only if negotiations in COCOM to add

3 the item to the International Munitions

4 List are continuing; or

5 (ii) if the Secretary of State, in con6 sultation with the Secretary, so deter7 mines, except that if the Secretary dis8 agrees with the Secretary of State with re9 spect to such item, the item may be sub10 ject to control under the Arms Export

11 Control Act only if the disagreement is re12 solved by the Secretaries or by the Presi13 dent pursuant to the procedures set forth

14 in subparagraphs (B) and (C) of para15 graph (4).

16 (B) An item referred to in subparagraph

17 (A) is an item that—

18 (i) is specifically designed or devel19 oped for military application;

20 (ii) does not have bona fide civilian

21 applications; and

22 (iii) does not have performance equiv23 alent in form and function to those of an

24 article or service used for civilian applica25 tions.
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•S 1846 IS

1 (3) PUBLICATION OF LISTS.—

2 (A) Not later than 3 months after the date

3 of enactment of this Act, the Secretary shall

4 publish the security control list and the Sec5 retary of State shall publish the United States

6 Munitions List, with all revisions that have

7 been made in accordance with this subsection.

8 (B) Not later than 3 months after the date

9 of enactment of this Act, the Secretary of State

10 shall publish in a separate list those items re11 maining subject to control under the Arms Ex12 port Control Act under paragraph (2).

13 (C) If either the Secretary or the Secretary

14 of State fails to publish a revised list in accord15 ance with subparagraph (A), there shall be ex16 cluded from the list of the Secretary that did

17 not so publish a revised list any item included

18 on the list of the Secretary that did so publish

19 a revised list.

20 (4) COMMODITY JURISDICTION DISPUTE RESO21 LUTION.—

22 (A) Whenever—

23 (i) the Secretary or the Secretary of

24 State receives a request to determine
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•S 1846 IS

1 whether an item is subject to control under

2 this Act or the Arms Export Control Act;

3 (ii) either Secretary finds that an item

4 is included on both the security control

5 index and the United States Munitions

6 List;

7 (iii) an item appearing on the list of

8 one Secretary under paragraph (3)(A) is

9 considered by the other Secretary to be

10 under the jurisdiction of that other Sec11 retary; or

12 (iv) the Secretary disagrees with the

13 inclusion of an item on the list published

14 under paragraph (3)(B);

15 the Secretary or the Secretary of State (as the

16 case may be) shall refer the matter and any rel17 evant information to the other Secretary.

18 (B) The 2 Secretaries shall have a period

19 of 15 days following the referral of a matter

20 under subparagraph (A) to resolve any dif21 ferences with respect to the matter involved.

22 (C) If the 2 Secretaries fail to resolve such

23 differences within that 15-day period, either

24 Secretary may refer the matter to the President

25 who, not later than 15 days after receiving the
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•S 1846 IS

1 referral, shall notify the 2 Secretaries of his de2 termination on the matter in dispute.

3 (D) In resolving disputes under subpara4 graph (C), the President may decide that an

5 item which is not on the International Muni6 tions List is subject to control under the Arms

7 Export Control Act only if the President—

8 (i) determines that extraordinary cir9 cumstances exist affecting the national se10 curity of the United States, which require

11 that the item be controlled under the Arms

12 Export Control Act;

13 (ii) proposes to COCOM that the item

14 be added to the International Munitions

15 List; and

16 (iii) not later than 10 days after mak17 ing the determination under clause (i),

18 submits a report to the Speaker of the

19 House of Representatives and the Presi20 dent pro tempore of the Senate, describing

21 in detail the reasons for the determination,

22 in appropriate classified form, as nec23 essary.

24 (E) If either the Secretary or the Secretary

25 of State does not respond to a referral under
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•S 1846 IS

1 subparagraph (A), the Secretary that did not so

2 respond shall be deemed to concur with the

3 other Secretary on the matter involved.

4 (d) AMENDMENTS TO THE INTERNATIONAL EMER5 GENCY ECONOMIC POWERS ACT.—

6 (1) LIMITATION ON AUTHORITY.—Section

7 203(a)(1) of the International Emergency Economic

8 Powers Act (50 U.S.C. 1706) is amended by adding

9 at the end the following:

10 ‘‘The President may prohibit or curtail the exportation

11 and reexportation of any commercial goods or technology

12 subject to the jurisdiction of the United States under this

13 title only to the extent provided, and subject to the criteria

14 set forth in, sections 4 and 5 of the Commercial Export

15 Administration Act of 1993, unless such prohibition or

16 curtailment is part of a total embargo of all exports and

17 imports (other than exports of items described in section

18 7(b)(6) of such Act).’’.

19 (2) EXTENSION OR REINSTATEMENT OF EX20 PIRED PROVISION OF LAW.—Section 207 of the

21 International Emergency Economic Powers Act (50

22 U.S.C. 1706) is amended—

23 (A) by redesignating subsections (c) and

24 (d) as subsections (d) and (e), respectively, and
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•S 1846 IS

1 (B) by inserting after subsection (b) the

2 following new subsection:

3 ‘‘(c) EXPIRED LEGISLATIVE AUTHORITY.—The

4 President may use the authority of this Act to extend or

5 reinstate an expired provision of the Commercial Export

6 Administration Act of 1993 for only one period of not

7 more than 180 days after the date of such expiration.’’.

8 SEC. 12. AUTHORIZATION OF APPROPRIATIONS; TERMI9 NATION DATE.

10 (a) AUTHORIZATION OF APPROPRIATIONS.—

11 (1) REQUIREMENT OF AUTHORIZING LEGISLA12 TION.—

13 (A) Notwithstanding any other provision of

14 law, money appropriated to the Department of

15 Commerce to carry out the purposes of this Act

16 may be obligated or expended only if—

17 (i) the appropriation thereof has been

18 previously authorized by law enacted on or

19 after the date of enactment of this Act; or

20 (ii) the amount of all such obligations

21 and expenditures does not exceed an

22 amount previously prescribed by law en23 acted on or after such date.

24 (B) To the extent that legislation enacted

25 after the making of an appropriation to carry
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•S 1846 IS

1 out the purposes of this Act authorizes the obli2 gation or expenditure thereof, the limitation in

3 subparagraph (A) shall have no effect.

4 (2) AUTHORIZATION.—There are authorized to

5 be appropriated to the Department of Commerce

6 such sums as may be necessary to carry out the pur7 poses of this Act.

8 (b) TERMINATION DATE.—The authority granted by

9 this Act terminates on September 30, 2000.

10 SEC. 13. MISCELLANEOUS PROVISIONS.

11 (a) AMENDMENTS TO TITLE 5, UNITED STATES

12 CODE.—(1) Section 5314 of title 5, United States Code,

13 is amended—

14 (A) by striking ‘‘Under Secretary of Commerce

15 for Export Administration’’; and

16 (B) by adding at the end the following:

17 ‘‘Director, Commercial Export Control Adminis18 tration.’’.

19 (2) Section 5315 of title 5, United States Code, is

20 amended—

21 (A) in the item relating to Assistant Secretaries

22 of Commerce, by striking ‘‘(11)’’ and inserting

23 ‘‘(9)’’; and

24 (B) by adding at the end the following:
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1 ‘‘Deputy Director, Commercial Export Control

2 Administration.

3 ‘‘Assistant Director for Export Control, Com4 mercial Export Control Administration.

5 ‘‘Assistant Director for Enforcement and Com6 pliance, Commercial Export Control Administration.

7 ‘‘Assistant Director for Security and Intel8 ligence, Commercial Export Control Administration.

9 ‘‘Assistant Director for Nonproliferation, Com10 mercial Export Control Administration.

11 ‘‘Chief Negotiator, Commercial Export Control

12 Administration.’’.

13 (b) EXPORT ADMINISTRATION ACT OF 1979.—Upon

14 the effective date of this Act, sections 5, 11A, 11B, 11C,

15 10(h), and 10(o) of the Export Administration Act of

16 1979, and section 6 of that Act (except to the extent pro17 vided in section 8(b) of that Act), shall cease to be effec18 tive, and all other provisions of that Act to the extent such

19 provisions apply to such ineffective sections shall cease to

20 be effective.

21 (c) SAVINGS PROVISIONS.—

22 (1) IN GENERAL.—All delegations, rules, regu23 lations, orders, determinations, licenses, or other

24 forms of administrative action which—
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1 (A) have been made, issued, conducted, or

2 allowed to become effective—

3 (i) under provisions of the Export Ad4 ministration Act of 1979 referred to in

5 subsection (b); or

6 (ii) in the exercise of functions trans7 ferred by this Act; and

8 (B) are in effect at the time this Act takes

9 effect;

10 shall continue in effect according to their terms until

11 modified, superseded, set aside, or revoked under

12 this Act.

13 (2) ADMINISTRATIVE PROCEEDINGS.—This Act

14 shall not apply to any administrative proceedings

15 commenced or any application for a license made

16 under the Export Administration Act of 1979, or in

17 the exercise of functions transferred by this Act,

18 which is pending at the time this Act takes effect.

19 (d) EFFECTIVE DATE.—This Act takes effect on the

20 date of enactment of this Act.

Æ

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