104TH CONGRESS

2D SESSION H. R. 361

AN ACT

To provide authority to control exports, and for

other purposes.
104TH CONGRESS

2D SESSION H. R. 361

AN ACT

To provide authority to control exports, and for other

purposes.

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

3 SECTION 1. TABLE OF CONTENTS.

4 The table of contents of this Act is as follows:
2

•HR 361 EH

Sec. 1. Table of contents.

TITLE I—EXPORT ADMINISTRATION

Sec. 101. Short title.

Sec. 102. Findings.

Sec. 103. Policy statement.

Sec. 104. General provisions.

Sec. 105. Multilateral controls.

Sec. 106. Emergency controls.

Sec. 107. Short supply controls.

Sec. 108. Foreign boycotts.

Sec. 109. Procedures for processing export license applications; other inquiries.

Sec. 110. Violations.

Sec. 111. Controlling proliferation activity.

Sec. 112. Administrative and judicial review.

Sec. 113. Enforcement.

Sec. 114. Export control authorities and procedures.

Sec. 115. Annual report.

Sec. 116. Definitions.

Sec. 117. Effects on other Acts.

Sec. 118. Secondary Arab boycott.

Sec. 119. Conforming amendments to other laws.

Sec. 120. Expiration date.

Sec. 121. Savings provision.

TITLE II—NUCLEAR PROLIFERATION PREVENTION

Sec. 201. Repeal of termination of provisions of the Nuclear Proliferation Prevention Act of 1994.

Sec. 202. Seeking multilateral support for unilateral sanctions.

Sec. 203. Sanctions under the Nuclear Proliferation Prevention Act of 1994.

1 TITLE I—EXPORT

2 ADMINISTRATION

3 SEC. 101. SHORT TITLE.

4 This title may be cited as the ‘‘Export Administration

5 Act of 1996’’.

6 SEC. 102. FINDINGS.

7 The Congress makes the following findings:

8 (1) Export controls are a part of a comprehen9 sive response to national security threats. United

10 States exports should be restricted only for signifi-
3

•HR 361 EH

1 cant national security, nonproliferation, and foreign

2 policy reasons.

3 (2) Exports of certain commodities and tech4 nology may adversely affect the national security

5 and foreign policy of the United States by making

6 a significant contribution to the military potential of

7 individual countries or by disseminating the capabil8 ity to design, develop, test, produce, stockpile, or use

9 weapons of mass destruction, missile delivery sys10 tems, and other significant military capabilities.

11 Therefore, the administration of export controls

12 should emphasize the control of these exports.

13 (3) The acquisition of sensitive commodities

14 and technology by those countries and end users

15 whose actions or policies run counter to United

16 States national security or foreign policy interests

17 may enhance the military capabilities of those coun18 tries, particularly their ability to design, develop,

19 test, produce, stockpile, use, and deliver nuclear,

20 chemical, and biological weapons, missile delivery

21 systems, and other significant military capabilities.

22 This enhancement threatens the security of the

23 United States and its allies, and places additional

24 demands on the defense budget of the United States.

25 Availability to countries and end users of items that
4

•HR 361 EH

1 contribute to military capabilities or the proliferation

2 of weapons of mass destruction is a fundamental

3 concern of the United States and should be elimi4 nated through negotiations and other appropriate

5 means whenever possible.

6 (4) With the growing importance of exports to

7 sustained United States economic growth and vital8 ity, restrictions on exports must be evaluated in

9 terms of their effects on the United States economy.

10 (5) Export controls cannot be the sole instru11 ment of the United States to prevent a country or

12 end user from developing weapons of mass destruc13 tion. For this reason, export controls should be ap14 plied as part of a comprehensive response to security

15 threats.

16 (6) The national security of the United States

17 depends not only on wise foreign policies and a

18 strong defense, but also a vibrant national economy.

19 To be truly effective, export controls should be ap20 plied uniformly by all suppliers.

21 (7) International treaties, such as the Chemical

22 Weapons Convention, and international agreements

23 and arrangements intended to control, lessen, or

24 eliminate weapons of mass destruction should be

25 fully implemented by, among other things, imposing
5

•HR 361 EH

1 restrictions on imports and exports of designated

2 items, monitoring, and transmitting reports on, the

3 production, processing, consumption, export, and im4 port of designated items, and complying with ver5 ification regimes mandated by such treaties, agree6 ments, and arrangements.

7 (8) Except in the event the United States is the

8 sole source of critical supplies, unilateral export con9 trols are generally not truly effective in influencing

10 the behavior of other governments or impeding ac11 cess to controlled items. Unilateral controls alone

12 may impede access to United States sources of sup13 ply without affecting the ability of countries to ob14 tain controlled items elsewhere. Moreover, unilateral

15 controls generally permit foreign competitors to

16 serve markets the United States Government denies

17 to United States firms and workers, thus impairing

18 the reliability of United States suppliers in compari19 son with their foreign competitors. At the same

20 time, the need to lead the international community

21 or overriding national security or foreign policy in22 terests may justify unilateral controls in specific

23 cases.
6

•HR 361 EH

1 (9) The United States recognizes the impor2 tance of comprehensive enforcement measures to

3 maximize the effectiveness of multilateral controls.

4 (10) The United States export control system

5 must not be overly restrictive or bureaucratic, or un6 dermine the competitive position of United States in7 dustry. The export control system must be efficient,

8 responsive, transparent, and effective.

9 (11) Export restrictions that negatively affect

10 the United States industrial base may ultimately

11 weaken United States military capabilities and lead

12 to dependencies on foreign sources for key compo13 nents.

14 (12) Minimization of restrictions on exports of

15 agricultural commodities and products is of critical

16 importance to the maintenance of a sound agricul17 tural sector, to a positive contribution to the balance

18 of payments, to reducing the level of Federal ex19 penditures for agricultural support programs, and to

20 United States cooperation in efforts to eliminate

21 malnutrition and world hunger.

22 (13) Minimization of restrictions on the export

23 of information technology products and services is of

24 critical importance to United States leadership in re25 moving obstacles to the effective development of a
7

•HR 361 EH

1 superior global information infrastructure and the

2 new jobs and markets, increased trade and informa3 tion flows, improved national security, and new tools

4 for the improvement of the quality of life for people

5 globally that will be created.

6 (14) The United States should play a leading

7 role in promoting transparency and responsibility

8 with regard to the transfers of conventional arma9 ments and sensitive dual-use goods and technologies.

10 SEC. 103. POLICY STATEMENT.

11 It is the policy of the United States to do the follow12 ing:

13 (1) To stem the proliferation of weapons of

14 mass destruction, and the means to deliver them,

15 and other significant military capabilities by—

16 (A) leading international efforts to control

17 the proliferation of chemical and biological

18 weapons, nuclear explosive devices, missile deliv19 ery systems, and other significant military ca20 pabilities;

21 (B) controlling involvement of United

22 States persons in, and contributions by United

23 States persons to, foreign programs intended to

24 develop weapons of mass destruction, missiles,

25 and other significant military capabilities, and
8

•HR 361 EH

1 the means to design, test, develop, produce,

2 stockpile, or use them; and

3 (C) implementing international treaties or

4 other agreements or arrangements concerning

5 controls on exports of designated items, reports

6 on the production, processing, consumption,

7 and exports and imports of such items, and

8 compliance with verification programs.

9 (2) To restrict the export of items—

10 (A) that would significantly contribute to

11 the military potential of countries so as to prove

12 detrimental to the national security of the Unit13 ed States or its allies; or

14 (B) where necessary to further signifi15 cantly the foreign policy of the United States or

16 to fulfill its declared international commit17 ments.

18 (3) To—

19 (A) minimize uncertainties in export con20 trol policy; and

21 (B) encourage trade with all countries with

22 which the United States has diplomatic or trad23 ing relations, except those countries with which

24 such trade has been determined by the Presi25 dent to be against the national interest.
9

•HR 361 EH

1 (4) To restrict export trade when necessary to

2 protect the domestic economy from the excessive

3 drain of scarce materials and to reduce the serious

4 inflationary impact of foreign demand.

5 (5) To further increase the reliance of the Unit6 ed States upon multilateral coordination of controls

7 through effective control regimes that maintain lists

8 of controlled items that are truly critical to the con9 trol objectives, strive to increase membership to in10 clude all relevant countries, maintain common cri11 teria and procedures for licensing, and harmonize

12 member countries’ licensing practices. It is the pol13 icy of the United States that multilateral controls

14 are the best means of achieving the control objec15 tives of the United States.

16 (6) To impose unilateral controls only when it

17 is necessary to further significantly the national se18 curity or foreign policy of the United States, and

19 only after full consideration of the economic impact

20 of the controls and their effectiveness in achieving

21 their intended objectives.

22 (7) To make all licensing determinations in a

23 timely manner so undue delays in the licensing proc24 ess will not cause a United States person to lose an

25 export sale.
10

•HR 361 EH

1 (8) To use export controls to deter and punish

2 acts of international terrorism and to encourage

3 other countries to take immediate steps to prevent

4 the use of their territories or resources to aid, en5 courage, or give sanctuary to those persons involved

6 in directing, supporting, or participating in acts of

7 international terrorism. To this end, consistent with

8 the policies of this section and the provisions of this

9 title, the United States should, by restricting exports

10 to countries that have violated international norms

11 of behavior by repeatedly supporting acts of inter12 national terrorism, distance itself from those coun13 tries.

14 (9)(A) To counteract restrictive trade practices

15 or boycotts fostered or imposed by foreign countries

16 against other countries friendly to the United States

17 or against any United States person.

18 (B) To encourage and, in specified cases, re19 quire United States persons engaged in the export of

20 commodities, technology, and other information to

21 refuse to take actions, including furnishing informa22 tion or entering into or implementing agreements,

23 which have the effect of furthering or supporting the

24 restrictive trade practices or boycotts fostered or im25 posed by any foreign country against a country
11

•HR 361 EH

1 friendly to the United States or against any United

2 States person.

3 (10) To streamline export control functions and

4 increase administrative accountability, and thereby

5 better serve the exporting public by reducing and

6 eliminating overlapping, conflicting, and inconsistent

7 regulatory burdens.

8 (11) To minimize restrictions on the export of

9 agricultural commodities and products.

10 (12) To minimize restrictions on the export of

11 information technology products and services as part

12 of a flexible regulatory environment that can keep

13 pace with the rapid technological changes necessary

14 to realize the full economic, societal, and national se15 curity benefits of United States leadership in the de16 velopment of a superior global information infra17 structure.

18 (13) To cooperate with other countries to pro19 mote greater transparency and responsibility with

20 regard to the transfers of armaments and sensitive

21 goods and technologies, both for the purpose of de22 veloping common understandings of the risks to

23 international peace and regional security associated

24 with the transfers of such items and to coordinate

25 national control policies to combat those risks.
12

•HR 361 EH

1 (14) To enhance the national security and non2 proliferation interests of the United States. To this

3 end and consistent with the other policies of this sec4 tion and the provisions of this title, the United

5 States will use export controls when necessary to en6 sure that access to weapons of mass destruction,

7 missile delivery systems, and other significant mili8 tary capabilities is restricted. While the multilateral

9 nonproliferation regimes will be the primary instru10 ments through which the United States will pursue

11 its nonproliferation goals, it may also, consistent

12 with the policies of this section and the provisions of

13 this title, take unilateral action.

14 (15) To promote international peace, stability,

15 and respect for fundamental human rights. The

16 United States may establish controls on exports that

17 contribute to the military capabilities of countries

18 that threaten international peace or stability or to

19 countries that abuse the fundamental rights of their

20 citizens, or to promote other important foreign pol21 icy objectives of the United States, consistent with

22 the policies of this section and the provisions of this

23 title.
13

•HR 361 EH

1 SEC. 104. GENERAL PROVISIONS.

2 (a) TYPES OF LICENSES.—Under such conditions as

3 the Secretary may impose, consistent with the provisions

4 of this title, the Secretary may require any type of license

5 appropriate to the effective and efficient implementation

6 of this title, including the following:

7 (1) SPECIFIC EXPORTS.—A license authorizing

8 a specific export.

9 (2) MULTIPLE EXPORTS.—Licenses authorizing

10 multiple exports, issued pursuant to an application

11 by the exporter, in lieu of a license for each such ex12 port. Licenses under this paragraph shall be de13 signed to encourage and acknowledge exporters’ in14 ternal control programs for ensuring compliance

15 with the terms of the license.

16 (b) UNITED STATES COMMODITY CONTROL

17 INDEX.—

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

19 and maintain, in consultation with the Secretary of

20 Defense and the heads of other appropriate depart21 ments and agencies, a United States Commodity

22 Control Index specifying the license requirements

23 under this title that are applicable to the items on

24 the list.

25 (2) CONTENTS.—The control index shall—
14

•HR 361 EH

1 (A) consist of a multilateral control list of

2 items on which export controls are imposed

3 under section 105, an emergency control list of

4 items on which export controls are imposed

5 under section 106, and a short supply control

6 list of commodities on which export controls are

7 imposed under section 107;

8 (B) include, as part of the multilateral and

9 emergency control lists, those items identified

10 pursuant to section 111(a);

11 (C) for each item on the control index,

12 specify with particularity the performance

13 (where applicable) and other identifying charac14 teristics of the item and provide a rationale for

15 why the item is on the control list;

16 (D) identify countries, and, as appropriate,

17 end uses or end users, including specific

18 projects and end users of concern, cross-ref19 erenced with the list of commodities and tech20 nology on which export controls are imposed;

21 and

22 (E) be sufficiently specific and clear as to

23 guide exporters and licensing officers in deter24 minations of licensing requirements under this

25 title.
15

•HR 361 EH

1 (c) DENIED OR DEBARRED PARTIES, SANCTIONED

2 PARTIES, BLOCKED PERSONS, SPECIALLY DESIGNATED

3 NATIONALS, AND OTHER PARTIES PRESENTING UNAC4 CEPTABLE RISKS OF DIVERSION.—

5 (1) DENIED OR DEBARRED PARTIES, SANC6 TIONED PARTIES, BLOCKED PERSONS, AND SPE7 CIALLY DESIGNATED NATIONALS.—The President

8 shall ensure that an official list is published semi9 annually in the Federal Register of all parties denied

10 or debarred from export privileges under this title or

11 under the Arms Export Control Act, all parties sanc12 tioned for prohibited proliferation activity under this

13 title or other statutes, and all blocked persons and

14 specially designated nationals. For purposes of this

15 paragraph, a ‘‘blocked person’’ or ‘‘specially des16 ignated national’’ is a person or entity so designated

17 by the President or the Secretary of the Treasury

18 under the Trading With the Enemy Act, or the

19 International Emergency Economic Powers Act, with

20 whom transactions are prohibited on account of the

21 relationship of that person or entity with a country,

22 organization, or activity against which sanctions are

23 imposed under either such Act. Promptly after any

24 person is designated a ‘‘blocked person’’ or ‘‘spe25 cially designated national’’, the Secretary of the
16

•HR 361 EH

1 Treasury shall publish such designation in the Fed2 eral Register.

3 (2) OTHER PARTIES.—The Secretary shall

4 maintain a list of parties for whom licenses under

5 this title will be presumptively denied.

6 (d) DELEGATION OF AUTHORITY.—Subject to the

7 provisions of this title, the President may delegate the

8 power, authority, and discretion conferred upon the Presi9 dent by this title to such departments, agencies, and offi10 cials of the Government as the President considers appro11 priate, except that no authority under this title may be

12 delegated to, or exercised by, any official of any depart13 ment or agency the head of which is not appointed by the

14 President, by and with the advice and consent of the Sen15 ate. The President may not delegate or transfer his power,

16 authority, or discretion to overrule or modify any rec17 ommendation or decision made by the Secretary, the Sec18 retary of Defense, or the Secretary of State under this

19 title and may not delegate the authority under section

20 106(a)(4).

21 (e) NOTIFICATION OF THE PUBLIC; CONSULTATION

22 WITH BUSINESS.—The Secretary shall keep the public

23 fully apprised of changes in export control policy and pro24 cedures instituted in conformity with this title with a view

25 to encouraging trade. The Secretary shall consult regu-
17

•HR 361 EH

1 larly with representatives of a broad spectrum of enter2 prises, labor organizations, and citizens interested in or

3 affected by export controls, in order to obtain their views

4 on United States export control policy and the foreign

5 availability of items subject to controls.

6 (f) EXPORT ADVISORY COMMITTEES.—

7 (1) APPOINTMENT.—Upon his or her own ini8 tiative or upon the written request of representatives

9 of a substantial segment of any industry which pro10 duces any items subject to export controls under this

11 title or under the International Emergency Eco12 nomic Powers Act, or being considered for such con13 trols, the Secretary shall appoint export advisory

14 committees with respect to any such items. Each

15 such committee shall consist of representatives of

16 United States industry and Government, including

17 the Department of Commerce and other appropriate

18 departments and agencies of the Government. The

19 Secretary shall permit the widest possible participa20 tion by the business community on the export advi21 sory committees.

22 (2) FUNCTIONS.—Export advisory committees

23 appointed under paragraph (1) shall advise and as24 sist the Secretary, and any other department, agen25 cy, or official of the Government carrying out func-
18

•HR 361 EH

1 tions under this title, on actions (including all as2 pects of controls imposed or proposed) designed to

3 carry out the policies of this title concerning the

4 items with respect to which such export advisory

5 committees were appointed. Such committees, where

6 they have expertise in such matters, shall be con7 sulted on questions involving—

8 (A) technical matters,

9 (B) worldwide availability and actual utili10 zation of production technology,

11 (C) licensing procedures which affect the

12 level of export controls applicable to any items,

13 (D) revisions of the multilateral control list

14 (as provided in section 105(g)), including pro15 posed revisions of multilateral controls in which

16 the United States participates,

17 (E) the issuance of regulations,

18 (F) the impact and interpretation of exist19 ing regulations,

20 (G) processes and procedures for review of

21 licenses and policy,

22 (H) any other questions relating to actions

23 designed to carry out this title, and

24 (I) the operation and conduct of inter25 national business transactions.
19

•HR 361 EH

1 Nothing in this subsection shall prevent the United

2 States Government from consulting, at any time,

3 with any person representing an industry or the gen4 eral public, regardless of whether such person is a

5 member of an export advisory committee. Members

6 of the public shall be given a reasonable opportunity,

7 pursuant to regulations prescribed by the Secretary,

8 to present evidence to such committees.

9 (3) REIMBURSEMENT OF EXPENSES.—Upon

10 the request of any member of any export advisory

11 committee appointed under paragraph (1), the Sec12 retary may, if the Secretary determines it to be ap13 propriate, reimburse such member for travel, sub14 sistence, and other necessary expenses incurred by

15 such member in connection with the duties of such

16 member.

17 (4) CHAIRPERSON.—Each export advisory com18 mittee appointed under paragraph (1) shall elect a

19 chairperson, and shall meet at least every 3 months

20 at the call of the chairperson, unless the chairperson

21 determines, in consultation with the other members

22 of the committee, that such a meeting is not nec23 essary to achieve the purposes of this subsection.

24 Each such committee shall be terminated after a pe25 riod of 2 years, unless extended by the Secretary for
20

•HR 361 EH

1 additional periods of 2 years each. The Secretary

2 shall consult with each such committee on such ter3 mination or extension of that committee.

4 (5) ACCESS TO INFORMATION.—To facilitate

5 the work of the export advisory committees ap6 pointed under paragraph (1), the Secretary, in con7 junction with other departments and agencies par8 ticipating in the administration of this title, shall

9 disclose to each such committee adequate informa10 tion, consistent with national security, pertaining to

11 the reasons for the export controls which are in ef12 fect or contemplated for the items or policies for

13 which that committee furnishes advice. Information

14 provided by the export advisory committees shall not

15 be subject to disclosure under section 552 of title 5,

16 United States Code, and such information shall not

17 be published or disclosed unless the Secretary deter18 mines that the withholding thereof is contrary to the

19 national interest.

20 (g) DEVELOPMENT AND REVIEW OF THE CONTROL

21 INDEX.—

22 (1) IN GENERAL.—

23 (A) Consistent with the general guidance

24 of the Export Control Policy Committee estab25 lished in section 114(c), the Secretary of De-
21

•HR 361 EH

1 fense and the heads of other appropriate de2 partments and agencies may identify and rec3 ommend to the Secretary—

4 (i) commodities and technology for in5 clusion on, or deletion from, the multilat6 eral and emergency control lists; and

7 (ii) the licensing requirements that

8 should or should not apply to these com9 modities and technology.

10 (B) The Secretary of Defense shall have

11 primary responsibility for identifying commod12 ities and technologies that are critical to the de13 sign, development, test, production, stockpiling,

14 or use of weapons of mass destruction and

15 other military capabilities, including nuclear, bi16 ological, and chemical weapons, and manned

17 and unmanned vehicles capable of delivering

18 such weapons, in determining recommendations

19 for inclusion of items on the control index.

20 (C) If the Secretary of Defense, the Sec21 retary of State, or the Secretary of Energy dis22 agrees with the decision of the Secretary re23 garding the inclusion or deletion, or licensing

24 requirements of, any commodity or technology,

25 the Secretary of Defense, State, or Energy (as
22

•HR 361 EH

1 the case may be) may, within 30 days after the

2 Secretary makes the decision, appeal the Sec3 retary’s decision to the President in writing,

4 but only on the basis of the specific provisions

5 of this title. If the Secretary of Defense, the

6 Secretary of State, or the Secretary of Energy

7 fails to appeal a decision of the Secretary in ac8 cordance with the preceding sentence, he or she

9 shall be deemed to have no objection to the de10 cision. The President shall resolve a disagree11 ment under this subsection not later than 30

12 days after the appeal is made under this para13 graph.

14 (2) NEGOTIATIONS.—The Secretary of State, in

15 consultation with appropriate departments and agen16 cies, shall be responsible for conducting negotiations

17 with other countries regarding multilateral arrange18 ments for restricting the export of items to carry out

19 the policies of this title. All appropriate departments

20 and agencies shall develop initial technical param21 eters and product definitions in connection with the

22 development of proposals within the United States

23 Government to be made to multilateral regimes, in

24 consultation with the export advisory committees as

25 provided in paragraph (3).
23

•HR 361 EH

1 (3) CONSULTATIONS WITH EXPORT ADVISORY

2 COMMITTEES.—The Secretary shall consult with the

3 appropriate export advisory committee appointed

4 under this section with respect to changes in the

5 control index, and such export advisory committee

6 may submit recommendations to the Secretary with

7 respect to such changes. The Secretary shall con8 sider the recommendations of the export advisory

9 committee and shall inform the committee of the dis10 position of its recommendations. The Secretary shall

11 also seek comments and recommendations from the

12 public in connection with changes in the control

13 index. To the maximum extent practicable and con14 sistent with the conduct of international negotia15 tions, such comments and recommendations should

16 be taken into consideration in the development of

17 United States Government proposals and positions

18 to be taken in multilateral regimes.

19 (h) RIGHT OF EXPORT.—No authority or permission

20 to export may be required under this title, or under regula21 tions issued under this title, except to carry out the poli22 cies set forth in section 103.

23 (i) INTERNATIONAL OBLIGATIONS UNDER TREA24 TIES.—Notwithstanding any other provision of this title

25 containing limitations on authority to control exports, the
24

•HR 361 EH

1 Secretary, in consultation with the Secretary of State, may

2 impose controls on exports to a particular country or coun3 tries in order to fulfill obligations of the United States

4 under resolutions of the United Nations and under trea5 ties to which the United States is a party. The Secretary

6 may regulate domestic and foreign conduct consistent with

7 the policies of such United Nations resolutions, treaties,

8 and other international agreements. Such authority shall

9 include, but not be limited to, authority to prohibit activity

10 such as financing, contracting, providing services, or em11 ployment, to deny access to items in the United States

12 and abroad, to conduct audits of records and inspections

13 of facilities, to compel reports, and to curtail travel.

14 (j) FEES.—No fee may be charged in connection with

15 the submission or processing of an export license applica16 tion under this title.

17 SEC. 105. MULTILATERAL CONTROLS.

18 (a) AUTHORITY.—

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

20 policies set forth in paragraphs (1), (2), (5), (13),

21 (14), and (15) of section 103, the President may, in

22 accordance with this section, prohibit, curtail, or re23 quire the provision of information regarding, the ex24 port of any commodities, technology, or other infor25 mation subject to the jurisdiction of the United
25

•HR 361 EH

1 States, or exported by any person subject to the ju2 risdiction of the United States, in order to imple3 ment multilateral export control regimes. The au4 thority under this paragraph shall include, but not

5 be limited to, the authority to regulate domestic and

6 foreign conduct, to prohibit activity such as financ7 ing, contracting, providing services, or employment,

8 to deny access to items in the United States and

9 abroad, to conduct audits of records and inspections

10 of facilities, and to compel reports. The authority

11 granted by this subsection may not be exercised to

12 impose unilateral controls.

13 (2) EXERCISE OF AUTHORITY.—The authority

14 granted by this subsection shall be implemented by

15 the Secretary, in consultation with appropriate de16 partments and agencies.

17 (3) CONSISTENCY WITH EXPORT CONTROL RE18 GIMES.—Any provision of this title that provides

19 that no authority or permission to export may be re20 quired under this title shall not apply to the extent

21 that such a provision is inconsistent with an inter22 national commitment of the United States under a

23 multilateral export control regime.

24 (b) MULTILATERAL CONTROL LIST.—The Secretary

25 shall, in consultation with appropriate departments and
26

•HR 361 EH

1 agencies as provided in section 104(g), designate as part

2 of the control index, a multilateral control list, comprised

3 of the items on which export controls are in effect under

4 this section.

5 (c) EXPORT LICENSING POLICIES.—The President

6 shall ensure that steps are taken to increase the degree

7 to which the licensing requirements of other export regime

8 members are harmonized with the licensing requirements

9 maintained by the Secretary in controlling items under

10 this section.

11 (d) MULTILATERAL CONTROL REGIMES.—

12 (1) POLICY.—In order to carry out the policies

13 set forth in section 103, the Secretary of State, in

14 consultation with appropriate departments and agen15 cies, should seek multilateral arrangements that are

16 intended to secure effective achievement of these

17 policies and, in so doing, also establish fairer and

18 more predictable competitive opportunities for Unit19 ed States exporters.

20 (2) STANDARDS FOR NATIONAL SYSTEMS.—In

21 the establishment and maintenance of multilateral

22 regimes, the Secretary of State, in consultation with

23 appropriate departments and agencies, shall take

24 steps to attain the cooperation of members of the re25 gimes in the effective implementation of export con-
27

•HR 361 EH

1 trol systems. Such systems should contain the fol2 lowing elements:

3 (A) National laws providing enforcement

4 authorities, civil and criminal penalties, and

5 statutes of limitations sufficient to deter poten6 tial violations and punish violators.

7 (B) A program to evaluate export license

8 applications that includes sufficient technical

9 expertise to assess the licensing status of ex10 ports and ensure the reliability of end users.

11 (C) An enforcement mechanism that pro12 vides authority for trained enforcement officers

13 to investigate and prevent illegal exports.

14 (D) A system of export control documenta15 tion to verify the movement of items.

16 (E) Procedures for the coordination and

17 exchange of information concerning licensing,

18 end users, and enforcement.

19 (F) Adequate national resources devoted to

20 carrying out subparagraphs (A) through (E).

21 (3) STANDARDS FOR MULTILATERAL RE22 GIMES.—In the establishment and maintenance of

23 multilateral regimes, the Secretary of State, in con24 sultation with appropriate departments and agen25 cies, should seek, consistent with the policies set
28

•HR 361 EH

1 forth in section 103, the following features for the

2 multilateral control regimes in which the United

3 States participates:

4 (A) FULL MEMBERSHIP.—Achieve mem5 bership of all supplier countries whose policies

6 and activities are consistent with the objectives

7 and membership criteria of the multilateral re8 gime.

9 (B) EFFECTIVE ENFORCEMENT AND COM10 PLIANCE.—Promote enforcement and compli11 ance with the rules and guidelines of the mem12 bers of the regime through maintenance of an

13 effective control list.

14 (C) PUBLIC UNDERSTANDING.—Enhance

15 public understanding of each regime’s purpose

16 and procedures.

17 (D) EFFECTIVE IMPLEMENTATION PROCE18 DURES.—Achieve procedures for effective imple19 mentation of the rules and guidelines of the re20 gime through uniform and consistent interpre21 tations of export controls agreed to by the gov22 ernments participating in the regime.

23 (E) ENHANCED COOPERATION AMONG RE24 GIME MEMBERS.—Reach agreement to enhance

25 cooperation among members of the regime in
29

•HR 361 EH

1 obtaining the agreement of governments outside

2 the regime to restrict the export of items con3 trolled by the regime, to establish an ongoing

4 mechanism in the regime to coordinate planning

5 and implementation of export control measures

6 related to such agreements, and to remove

7 items from the list of items controlled by the re8 gime if the control of such items no longer

9 serves the objectives of the members of the re10 gime.

11 (F) PERIODIC HIGH-LEVEL MEETINGS.—

12 Conduct periodic meetings of high-level rep13 resentatives of participating governments for

14 the purpose of coordinating export control poli15 cies and issuing policy guidance to members of

16 the regime.

17 (G) COMMON LIST OF CONTROLLED

18 ITEMS.—Reach agreement on a common list of

19 items controlled by the regime.

20 (H) TREATMENT OF CERTAIN COUN21 TRIES.—Prevent the export or diversion of the

22 most sensitive items to countries whose activi23 ties are threatening to the national security of

24 the United States or its allies.
30

•HR 361 EH

1 (I) DISCLOSURE OF NONPROPRIETARY IN2 FORMATION.—Promote transparency and timely

3 disclosure of nonproprietary information with

4 respect to the transfers of sensitive dual-use

5 commodities and technologies, when appro6 priate, for the purpose of developing common

7 understandings of the risks to international

8 peace and regional security associated with such

9 transfers and to coordinate national control

10 policies to combat those risks.

11 (e) INCENTIVES FOR PARTNERSHIP.—Consistent

12 with the policies of this title and consistent with the objec13 tives, rules, and guidelines of the individual regime—

14 (1) the Secretary, in consultation with appro15 priate departments and agencies, may provide for

16 exports free of license requirements to and among

17 members of a multilateral regime for items subject

18 to controls under such a multilateral regime; and

19 (2) the Secretary, in consultation with appro20 priate departments and agencies, may adjust licens21 ing policies with respect to a particular country or

22 entity for access to items controlled under this title

23 to the extent of the adherence of that country or en24 tity to the export control policies of this section.
31

•HR 361 EH

1 Actions by the Secretary under paragraphs (1) and (2)

2 shall be consistent with the requirements of section

3 111(a)(1)(C).

4 (f) TRANSPARENCY OF MULTILATERAL CONTROL

5 REGIMES.—

6 (1) PUBLICATION OF INFORMATION ON EACH

7 EXISTING REGIME.—Within 6 months after the date

8 of the enactment of this Act, the Secretary shall, to

9 the extent doing so is not inconsistent with arrange10 ments in multilateral export control regimes, publish

11 in the Federal Register the following information

12 with respect to each multilateral control regime ex13 isting on the date of the enactment of this Act:

14 (A) Purposes of the control regime.

15 (B) Members of the regime.

16 (C) Licensing policy.

17 (D) Items subject to the controls under the

18 regime, together with all public notes, under19 standings, and other aspects of the agreement

20 of the regime, and all changes thereto.

21 (E) Any countries, end uses, or end users

22 that are subject to the controls.

23 (F) Rules of interpretation.

24 (G) Major policy actions.
32

•HR 361 EH

1 (H) The rules and procedures of the re2 gime for establishing and modifying any matter

3 described in subparagraphs (A) through (G)

4 and for reviewing export license applications.

5 (2) NEW REGIMES.—Within 2 months after the

6 United States joins or organizes a new export con7 trol regime, the Secretary shall, to the extent doing

8 so is not inconsistent with arrangements in the re9 gime, publish the information described in subpara10 graphs (A) through (H) of paragraph (1) with re11 spect to that regime.

12 (3) PUBLICATION OF CHANGES.—Within 2

13 months after the applicable regime adopts any

14 changes in the information published under this sub15 section, the Secretary shall, to the extent doing so

16 is not inconsistent with arrangements in the regime,

17 publish such changes in the Federal Register.

18 (g) REVIEW OF CONTROLLED ITEMS.—

19 (1) IN GENERAL.—Under the policy guidance of

20 the Export Control Policy Committee established in

21 section 114(c), and consistent with the procedures in

22 section 104(g), the Secretary shall review all items

23 on the multilateral control list maintained under

24 subsection (b) at least every 2 years, except that the

25 Secretary shall review annually whether the policy
33

•HR 361 EH

1 set forth in section 103(12) is being achieved. At the

2 conclusion of each review, the Secretary shall decide

3 whether to maintain or remove items from the multi4 lateral control list, maintain, change, or eliminate

5 the specifications, performance thresholds, or licens6 ing requirements on items on the list, or add items

7 to the list.

8 (2) CONSIDERATIONS.—In conducting the re9 view, the Secretary shall—

10 (A) consult with the Secretary of Defense

11 concerning militarily critical technologies;

12 (B) consult with the appropriate export ad13 visory committees appointed under section

14 104(f) and consider recommendations of such

15 committees with respect to proposed changes in

16 the multilateral control list;

17 (C) consider whether controlled items or

18 their equivalent are so widely available in the

19 United States (in terms of quantity, cost, and

20 means of sale and delivery) that the require21 ment for a license is ineffective in achieving the

22 purpose of the control;

23 (D) consider whether the differences be24 tween the export controls of the United States

25 and that of governments of foreign suppliers of
34

•HR 361 EH

1 competing items effectively has placed or will

2 place the United States exporter at a significant

3 commercial disadvantage with respect to its

4 competitors abroad, and has placed, or will

5 place, employment in the United States in jeop6 ardy;

7 (E) consider the results of determinations

8 made under section 114(k); and

9 (F) consider comments received pursuant

10 to the notice of review provided under para11 graph (3)(A).

12 (3) PROCEDURES.—

13 (A) NOTICE OF REVIEW.—Before begin14 ning each review under this subsection, the Sec15 retary shall publish a notice of that review in

16 the Federal Register and shall provide a 30-day

17 period for comments and submission of data,

18 including by exporters and other interested par19 ties.

20 (B) PROPOSALS TO EXPORT CONTROL RE21 GIMES.—If a revision to the multilateral control

22 list or to a licensing requirement under this

23 paragraph is inconsistent with the control lists,

24 guidelines, or the licensing requirements of, an

25 export control regime, the Secretary of State
35

•HR 361 EH

1 shall propose such revision to that regime. Such

2 revision shall become effective only to the extent

3 such revision is agreed to by the export control

4 regime.

5 (C) PUBLICATION OF REVISIONS.—The

6 Secretary shall publish in the Federal Register

7 any revisions in the list, with an explanation of

8 the reasons for the revisions.

9 SEC. 106. EMERGENCY CONTROLS.

10 (a) AUTHORITY.—

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

12 policy set forth in paragraphs (1), (2), (6), (8), (14),

13 and (15) of section 103, the President may, in ac14 cordance with the provisions of this section, unilater15 ally prohibit, curtail, or require the provision of in16 formation regarding the export of any commodity,

17 technology, or other information subject to the juris18 diction of the United States or exported by any per19 son subject to the jurisdiction of the United States.

20 The authority under this paragraph shall include,

21 but not be limited to, the authority to regulate do22 mestic and foreign conduct, to prohibit activity such

23 as financing, contracting, providing services, or em24 ployment, to deny access to items in the United
36

•HR 361 EH

1 States and abroad, to conduct audits of records and

2 inspections of facilities, and to compel reports.

3 (2) EXERCISE OF AUTHORITY.—The authority

4 contained in this section shall be exercised by the

5 Secretary, in consultation with the Secretary of

6 State, the Secretary of Defense, and such other de7 partments and agencies as the President considers

8 appropriate, and consistent with the procedures in

9 section 104(g).

10 (3) EXPIRATION OF CONTROLS.—

11 (A) IN GENERAL.—Any controls imposed

12 under this section shall expire 12 months after

13 they are imposed, unless they are terminated

14 earlier by the President or unless they are ex15 tended under this section, except that such con16 trols may be adopted as multilateral controls

17 under section 105 or included in an embargo

18 that is imposed by the President under the

19 International Emergency Economic Powers Act,

20 the Trading with the Enemy Act, or other pro21 vision of law other than this title. Any extension

22 or subsequent extension of the controls under

23 this section shall be for a period of not more

24 than 1 year each. The controls shall expire at

25 the end of each such extension unless they are
37

•HR 361 EH

1 terminated earlier by the President or unless

2 they are further extended under this section,

3 except that such controls may be adopted as

4 multilateral controls under section 105 or in5 cluded in an embargo described in the first sen6 tence of this subparagraph.

7 (B) EXCEPTION FOR MULTILATERAL

8 AGREEMENTS.—Subparagraph (A) shall not

9 apply to controls imposed by the President in

10 order to fulfill obligations of the United States

11 under resolutions of the United Nations or

12 under treaties to which the United States is a

13 party. If such a resolution or treaty ceases to

14 be in effect, controls imposed by the President

15 pursuant to such resolution or treaty shall im16 mediately cease to be in effect.

17 (4) CRITERIA.—Controls may be imposed, ex18 panded, or extended under this section only if the

19 President determines that—

20 (A) the controls are necessary to further

21 significantly the nonproliferation, national secu22 rity, or foreign policies of the United States

23 provided in section 103, the objective of the

24 controls is in the overall national interest of the
38

•HR 361 EH

1 United States, and reasonable alternative

2 means to the controls are not available;

3 (B) the controls are likely to make sub4 stantial progress toward achieving the intended

5 purpose of—

6 (i) changing, modifying, or constrain7 ing the undesirable conduct or policies of

8 the country to which the controls apply;

9 (ii) denying access by the country to

10 controlled items from all sources;

11 (iii) establishing multilateral coopera12 tion to deny the country access to con13 trolled items from all sources; or

14 (iv) denying exports or assistance that

15 significantly contributes to the prolifera16 tion of weapons of mass destruction or

17 other important military capabilities, ter18 rorism, or human rights abuses;

19 (C) the proposed controls are compatible

20 with the foreign policy objectives of the United

21 States and with overall United States policy to22 ward the country to which the controls apply;

23 (D) the reaction of other countries to the

24 imposition, expansion, or extension of such ex25 port controls by the United States is not likely
39

•HR 361 EH

1 to render the controls ineffective in achieving

2 the intended purpose or to be counter-produc3 tive to United States policy interests;

4 (E) the effect of the proposed controls on

5 the export performance of the United States,

6 the competitive position of the United States as

7 a supplier of items, or on the economic well8 being of individual United States companies

9 and their employees and communities does not

10 exceed the benefit to the United States foreign

11 policy, nonproliferation, or national security in12 terests; and

13 (F) the United States has the ability to en14 force the proposed controls effectively.

15 (b) CONSULTATION WITH INDUSTRY.—The Sec16 retary shall consult with and seek advice from affected

17 United States industries and export advisory committees

18 appointed under section 104(f) before the imposition, ex19 pansion, or extension of any export control under this sec20 tion.

21 (c) CONSULTATION WITH OTHER COUNTRIES.—

22 When expanding or extending export controls under this

23 section (unless such action is taken under subsection

24 (a)(3)(B)), the Secretary of State, in consultation with ap25 propriate departments and agencies, shall, at the earliest
40

•HR 361 EH

1 appropriate opportunity, consult with the countries with

2 which the United States maintains export controls coop3 eratively, and with other countries, as appropriate, to ad4 vise them of the reasons for the action and to urge them

5 to adopt similar controls.

6 (d) CONSULTATIONS WITH THE CONGRESS.—

7 (1) CONSULTATIONS.—The Secretary may im8 pose, expand, or extend export controls under this

9 section only after consultation with the Congress, in10 cluding the Committee on International Relations of

11 the House of Representatives and the Committee on

12 Banking, Housing, and Urban Affairs of the Senate.

13 (2) REPORTS.—The Secretary may not impose

14 or expand controls under subsection (a) until the

15 Secretary has submitted to the Congress a report—

16 (A) addressing each of the criteria set

17 forth in subsection (a)(4);

18 (B) specifying the purpose of the controls;

19 (C) describing the nature, the subjects,

20 and the results of, or plans for, the consultation

21 with industry under subsection (b) and with

22 other countries under subsection (c);

23 (D) specifying the nature and results of

24 any alternative means attempted to achieve the

25 objectives of the controls, or the reasons for im-
41

•HR 361 EH

1 posing or expanding the controls without at2 tempting any such alternative means; and

3 (E) describing the availability from other

4 countries of items comparable to the items sub5 ject to the controls, and describing the nature

6 and results of the efforts made to secure the co7 operation of foreign governments in controlling

8 the foreign availability of such comparable

9 items.

10 Such report shall also indicate how such controls will

11 further significantly the policies of the United States

12 as set forth in section 103 or will further its de13 clared international obligations.

14 (e) SEEKING MULTILATERAL SUPPORT FOR UNILAT15 ERAL CONTROLS.—The Secretary of State, in consultation

16 with appropriate departments and agencies, shall have a

17 continuing duty to seek support for controls imposed

18 under this section by other countries and by effective mul19 tilateral control regimes.

20 (f) PROCEDURES AND LIMITATIONS ON EMERGENCY

21 CONTROLS.—

22 (1) CESSATION OF EMERGENCY CONTROLS.—

23 (A) IN GENERAL.—Controls imposed under

24 this section on commodities, technology, or
42

•HR 361 EH

1 other information shall cease to be in effect im2 mediately upon—

3 (i) the imposition of similarly restric4 tive controls under section 105 on the

5 same commodities, technology, or informa6 tion to the country or end user, or for the

7 end use, with respect to which the controls

8 were imposed under this section; or

9 (ii) the imposition of an embargo,

10 under the International Emergency Eco11 nomic Powers Act, the Trading with the

12 Enemy Act, or other provision of law, on

13 exports to, and imports from the country

14 with respect to which the controls were im15 posed under this section.

16 (B) CONVERSION TO MULTILATERAL

17 AGREEMENTS.—If the President imposes con18 trols on commodities, technology, or other infor19 mation to a country or end user, or for an end

20 use, under this section in order to fulfill obliga21 tions of the United States under resolutions of

22 the United Nations or under a treaty to which

23 the United States is a party, any equivalent

24 controls imposed prior thereto under this sec25 tion on the same commodities, technology, or
43

•HR 361 EH

1 information to the same country or end user, or

2 for the same end use, shall immediately cease

3 to be in effect.

4 (2) LIMITATIONS ON REIMPOSITION.—Controls

5 which have ceased to be in effect under subsection

6 (a)(3), and which have not been extended under sub7 section (g), may not be reimposed by the President

8 under subsection (a) for a period of 6 months begin9 ning on the date on which the original controls ex10 pire, unless the President determines that reimposi11 tion of controls is warranted due to significant

12 changes in circumstances since the expiration of the

13 controls.

14 (g) EXTENSION OF EMERGENCY CONTROLS.—

15 (1) REPORT.—If the President decides to ex16 tend controls imposed under subsection (a), which

17 are due to expire under subsection (a)(3), the Presi18 dent shall, not later than 30 calendar days before

19 the expiration of such controls, transmit to the Con20 gress a report on the proposed extension, setting

21 forth the reasons for the proposed extension in detail

22 and specifying the period of time, which may not ex23 ceed 1 year, for which the controls are proposed to

24 be extended. In particular, such report shall—
44

•HR 361 EH

1 (A) contain determinations by the Presi2 dent—

3 (i) that the controls are likely to con4 tinue to make substantial progress toward

5 achieving the intended purpose of—

6 (I) changing, modifying, or con7 straining the undesirable conduct or

8 policies of the country to which the

9 controls apply;

10 (II) denying access by the coun11 try to controlled items from all

12 sources;

13 (III) establishing multilateral co14 operation to deny the country access

15 to controlled items from all sources;

16 or

17 (IV) denying exports or assist18 ance that significantly contributes to

19 the proliferation of weapons of mass

20 destruction or other important mili21 tary capabilities, terrorism, or human

22 rights abuses;

23 (ii) that the impact of the controls has

24 been compatible with the foreign policy ob25 jectives of the United States and with
45

•HR 361 EH

1 overall United States policy toward the

2 controlled country;

3 (iii) that the reaction of other coun4 tries to the imposition or expansion of the

5 controls by the United States has not ren6 dered the controls ineffective in achieving

7 the intended purpose and have not been

8 counterproductive to United States policy

9 interests;

10 (iv) that the effect of the controls on

11 the export performance of the United

12 States, the competitive position of the

13 United States as a supplier of items, and

14 the economic well-being of individual Unit15 ed States companies and their employees

16 and communities has not exceeded the ben17 efit to the United States foreign policy,

18 nonproliferation, or national security inter19 ests; and

20 (v) that the United States has en21 forced the controls effectively.

22 (2) FURTHER EXTENSIONS OF CONTROLS.—If,

23 upon the expiration of the controls extended under

24 this subsection, the President determines that a fur25 ther extension of emergency controls for an addi-
46

•HR 361 EH

1 tional period of time of not more than 1 year is nec2 essary, paragraph (1) shall apply to such further ex3 tension.

4 (h) EFFECT ON OTHER AUTHORITY.—

5 (1) EMBARGO AUTHORITY.—Nothing in this

6 section shall be construed to limit the authority of

7 the President to impose an embargo on exports to,

8 and imports from, a specific country under the

9 International Emergency Economic Powers Act, the

10 Trading with the Enemy Act, or other provision of

11 law (other than this title). In any case in which the

12 President exercises any such authority to impose an

13 embargo, the requirements of this section shall not

14 apply for so long as such embargo is in effect.

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

16 Nothing in this section affects the authorities con17 ferred upon the President by section 5(b) of the

18 Trading with the Enemy Act, which were being exer19 cised with respect to a country on July 1, 1977, as

20 a result of a national emergency declared by the

21 President before that date, and are being exercised

22 on the date of the enactment of this Act.

23 (B) Nothing in this section affects the authori24 ties conferred upon the President by the Inter25 national Economic Powers Act or other provision of
47

•HR 361 EH

1 law (other than the Export Administration Act of

2 1979), which were being exercised with respect to a

3 country before the date of the enactment of this Act

4 as a result of a national emergency declared by the

5 President before that date, and are being exercised

6 with respect to such country on such date of enact7 ment.

8 (i) COUNTRIES SUPPORTING INTERNATIONAL TER9 RORISM.—

10 (1) PROHIBITION ON EXPORTS.—(A) No export

11 described in subparagraph (B) may be made to any

12 country the government of which the Secretary of

13 State has determined has repeatedly provided sup14 port for acts of international terrorism.

15 (B) The exports referred to in subparagraph

16 (A) are—

17 (i) of any commodity or technology the ex18 port of which is controlled under this title pur19 suant to the Wassenaar Arrangement, the Mis20 sile Technology Control Regime, or the Aus21 tralia Group, or controlled under this title pur22 suant to section 309(c) of the Nuclear Non23 Proliferation Act of 1978,

24 (ii) of any other commodity or technology

25 the export of which is controlled under this title
48

•HR 361 EH

1 pursuant to multilateral export control regimes

2 in which the United States participates, and

3 (iii) of any commodity or technology which

4 could make a significant contribution to the

5 military potential of a country described in sub6 paragraph (A), including its military logistics

7 capability, or could enhance the ability of such

8 country to support acts of international terror9 ism,

10 other than food, medicine, or medical supplies that

11 the President determines will be used only for hu12 manitarian purposes. An individual validated license

13 shall be required for the export under this subpara14 graph of any such food, medicine, or medical sup15 plies.

16 (C) Subsections (a)(3) and (b) shall not apply

17 to exports prohibited or restricted under this sub18 section.

19 (D)(i) The Secretary shall maintain a list of

20 commodities and technology described in subpara21 graph (B)(iii). The Secretary shall review the list of

22 items on that list at least annually. At the conclu23 sion of the review, the Secretary shall determine

24 whether to remove items from the list, change the

25 specifications of items on the list, or add items to
49

•HR 361 EH

1 the list, in order to ensure that the items on the list

2 meet the requirements of subparagraph (B)(iii).

3 (ii) The procedures set forth in subparagraphs

4 (A) and (C) of section 105(g)(3) shall apply to re5 views under clause (i) of the list of items described

6 in subparagraph (B)(iii) to the same extent as such

7 section applies to reviews of the control list under

8 section 105(g).

9 (2) NOTIFICATION OF CONGRESS OF LICENSES

10 ISSUED.—The Secretary and the Secretary of State

11 shall notify the Speaker of the House of Representa12 tives and the Committee on Banking, Housing, and

13 Urban Affairs and the Committee on Foreign Rela14 tions of the Senate at least 30 days before issuing

15 any license under this title for exports to a country

16 the government of which the Secretary of State has

17 determined has repeatedly provided support for acts

18 of international terrorism.

19 (3) PUBLICATION OF DETERMINATIONS.—Each

20 determination of the Secretary of State under para21 graph (1)(A) shall be published in the Federal Reg22 ister.

23 (4) RESCISSION OF DETERMINATIONS.—A de24 termination made by the Secretary of State under

25 paragraph (1)(A) may not be rescinded unless the
50

•HR 361 EH

1 President submits to the Speaker of the House of

2 Representatives and the chairman of the Committee

3 on Banking, Housing, and Urban Affairs and the

4 chairman of the Committee on Foreign Relations of

5 the Senate—

6 (A) before the proposed rescission would

7 take effect, a report certifying that—

8 (i) there has been a fundamental

9 change in the leadership and policies of the

10 government of the country concerned;

11 (ii) that government is not supporting

12 acts of international terrorism; and

13 (iii) that government has provided as14 surances that it will not support acts of

15 international terrorism in the future; or

16 (B) at least 45 days before the proposed

17 rescission would take effect, a report justifying

18 the rescission and certifying that—

19 (i) the government concerned has not

20 provided any support for international ter21 rorism during the preceding 6-month pe22 riod; and

23 (ii) the government concerned has

24 provided assurances that it will not sup-
51

•HR 361 EH

1 port acts of international terrorism in the

2 future.

3 (5) WAIVER OF PROHIBITIONS.—The President

4 may waive the prohibitions contained in paragraph

5 (1)(A) with respect to a specific transaction if—

6 (A) the President determines that the

7 transaction is essential to the national security

8 interests of the United States; and

9 (B) not less than 30 days prior to the pro10 posed transaction, the President—

11 (i) consults with the Committee on

12 International Relations of the House of

13 Representatives and the Committee on

14 Banking, Housing, and Urban Affairs of

15 the Senate regarding the proposed trans16 action; and

17 (ii) submits to the Speaker of the

18 House of Representatives and the chair19 man of the Committee on Banking, Hous20 ing, and Urban Affairs of the Senate a re21 port containing—

22 (I) the name of any country in23 volved in the proposed transaction,

24 the identity of any recipient of the

25 items to be provided pursuant to the
52

•HR 361 EH

1 proposed transaction, and the antici2 pated use of those items;

3 (II) a description of the items in4 volved in the proposed transaction (in5 cluding their market value) and the

6 actual sale price at each step in the

7 transaction;

8 (III) the reasons why the pro9 posed transaction is essential to the

10 national security interests of the Unit11 ed States and the justification for the

12 proposed transaction;

13 (IV) the date on which the pro14 posed transaction is expected to occur;

15 and

16 (V) the name of any foreign gov17 ernments involved in the proposed

18 transaction.

19 To the extent possible, the information specified in

20 clause (ii) of subparagraph (B) shall be provided in

21 unclassified form.

22 (6) MULTILATERAL REGIMES.—The Secretary

23 of State, in consultation with appropriate depart24 ments and agencies, shall seek support by other
53

•HR 361 EH

1 countries and by effective multilateral control re2 gimes of controls imposed by this subsection.

3 (7) EFFECT ON OTHER LAWS.—The provisions

4 of this subsection do not affect any other provision

5 of law to the extent such other provision imposes

6 greater restrictions on exports to any country the

7 government of which the Secretary of State has de8 termined has repeatedly provided support for acts of

9 international terrorism than are imposed under this

10 subsection.

11 (j) CRIME CONTROL INSTRUMENTS.—

12 (1) LICENSE REQUIRED.—Crime control and

13 detection instruments and equipment shall be ap14 proved for export by the Secretary only pursuant to

15 an export license. Paragraphs (3)(A) and (4) of sub16 section (a) shall not apply to the export controls im17 posed by this subsection.

18 (2) CONCURRENCE OF SECRETARY OF STATE.—

19 (A) ITEMS ON CONTROL INDEX.—Any de20 termination of the Secretary of what commod21 ities or technology shall be included on the con22 trol index as a result of the export restrictions

23 imposed by this subsection shall be made with

24 the concurrence of the Secretary of State.
54

•HR 361 EH

1 (B) ACTION ON LICENSE APPLICATION.—

2 Any determination of the Secretary to approve

3 or deny an export license application to export

4 crime control or detection instruments or equip5 ment shall be made with the concurrence of the

6 Secretary of State.

7 (3) DISPUTE RESOLUTION.—If the Secretary of

8 State does not agree with the Secretary with respect

9 to any determination under paragraph (2), the Sec10 retary of State shall refer the matter to the Presi11 dent for resolution.

12 (4) EXCEPTIONS.—The provisions of this sub13 section shall not apply with respect to exports to

14 countries which are members of the North Atlantic

15 Treaty Organization or to Japan, Australia, or New

16 Zealand, or to such other countries as the President

17 shall designate consistent with the purposes of this

18 subsection and section 502B of the Foreign Assist19 ance Act of 1961.

20 (k) SPARE PARTS.—At the same time as the Presi21 dent imposes or expands export controls under this sec22 tion, the President shall determine whether such export

23 controls will apply to replacement parts or parts in com24 modities subject to such export controls.
55

•HR 361 EH

1 (l) EFFECT ON OTHER LAWS.—None of the prohibi2 tions contained in this section shall apply to any trans3 action subject to the reporting requirements of title V of

4 the National Security Act of 1947.

5 SEC. 107. SHORT SUPPLY CONTROLS.

6 (a) AUTHORITY.—

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

8 policy set forth in section 103(4), the President may

9 prohibit or curtail the export of any commodities

10 subject to the jurisdiction of the United States or

11 exported by any person subject to the jurisdiction of

12 the United States. In curtailing exports to carry out

13 the policy set forth in section 103(4), the President

14 shall allocate a portion of export licenses on the

15 basis of factors other than a prior history of expor16 tation. Such factors shall include the extent to which

17 a country engages in equitable trade practices with

18 respect to United States commodities and treats the

19 United States equitably in times of short supply.

20 (2) PUBLIC PARTICIPATION.—Upon imposing

21 quantitative restrictions on exports of any commod22 ities to carry out the policy set forth in section

23 103(4), the Secretary shall include in a notice pub24 lished in the Federal Register with respect to such

25 restrictions an invitation to all interested parties to
56

•HR 361 EH

1 submit written comments within 15 days after the

2 date of publication on the impact of such restrictions

3 and the method of licensing used to implement

4 them.

5 (3) LICENSE FEES.—In imposing export con6 trols under this section, the President’s authority

7 shall include, but not be limited to, the imposition

8 of export license fees.

9 (b) MONITORING.—

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

11 policy set forth in section 103(4), the Secretary shall

12 monitor exports, and contracts for exports, of any

13 commodity (other than a commodity which is subject

14 to the reporting requirements of section 602 of the

15 Agricultural Trade Act of 1978 (7 U.S.C. 5712))

16 when the volume of such exports in relation to do17 mestic supply contributes, or may contribute, to an

18 increase in domestic prices or a domestic shortage,

19 and such price increase or shortage has, or may

20 have, a serious adverse impact on the economy or

21 any sector thereof. Any such monitoring shall com22 mence at a time adequate to assure that the mon23 itoring will result in a data base sufficient to enable

24 policies to be developed, in accordance with section

25 103(4), to mitigate a short supply situation or seri-
57

•HR 361 EH

1 ous inflationary price rise or, if export controls are

2 needed, to permit imposition of such controls in a

3 timely manner. Information which the Secretary re4 quires to be furnished in effecting such monitoring

5 shall be confidential, except as provided in para6 graph (2).

7 (2) REPORTS ON MONITORING.—The results of

8 monitoring under paragraph (1) shall, to the extent

9 practicable, be aggregated and included in weekly re10 ports setting forth, with respect to each item mon11 itored, actual and anticipated exports, the destina12 tion by country, and the domestic and worldwide

13 price, supply, and demand. Such reports may be

14 made monthly if the Secretary determines that there

15 is insufficient information to justify weekly reports.

16 (3) CONSULTATION WITH SECRETARY OF EN17 ERGY.—The Secretary shall consult with the Sec18 retary of Energy to determine whether monitoring or

19 export controls under this section are warranted

20 with respect to exports of facilities, machinery, or

21 equipment normally and principally used, or in22 tended to be used, in the production, conversion, or

23 transportation of fuels and energy (except nuclear

24 energy), including, but not limited to—

25 (A) drilling rigs, platforms, and equipment;
58

•HR 361 EH

1 (B) petroleum refineries, and natural gas

2 processing, liquefaction, and gasification plants;

3 (C) facilities for production of synthetic

4 natural gas or synthetic crude oil;

5 (D) oil and gas pipelines, pumping sta6 tions, and associated equipment; and

7 (E) vessels for transporting oil, gas, coal,

8 and other fuels.

9 (c) PETITIONS FOR MONITORING OR CONTROLS OF

10 METALLIC MATERIALS.—

11 (1) IN GENERAL.—(A) Any entity, including a

12 trade association, firm, or certified or recognized

13 union or group of workers, that is representative of

14 an industry or a substantial segment of an industry

15 that processes metallic materials capable of being re16 cycled may transmit a written petition to the Sec17 retary requesting the monitoring of exports or the

18 imposition of export controls, or both, with respect

19 to any such material, in order to carry out the policy

20 set forth in section 103(4).

21 (B) Each petition shall be in such form as the

22 Secretary shall prescribe and shall contain informa23 tion in support of the action requested. The petition

24 shall include any information reasonably available to
59

•HR 361 EH

1 the petitioner indicating that each of the criteria set

2 forth in paragraph (3)(A) is satisfied.

3 (2) PUBLICATION OF NOTICE.—Within 15 days

4 after receipt of any petition described in paragraph

5 (1), the Secretary shall publish a notice in the Fed6 eral Register. The notice shall—

7 (A) include the name of the material that

8 is the subject to the petition;

9 (B) include the schedule B number of the

10 material as set forth in the Statistical Classi11 fication of Domestic and Foreign Commodities

12 Exported from the United States;

13 (C) indicate whether the petition is re14 questing that controls or monitoring, or both,

15 be imposed with respect to the exportation of

16 such material; and

17 (D) provide that interested persons shall

18 have a period of 30 days beginning on the date

19 on which the notice is published to submit to

20 the Secretary written data, views, or argu21 ments, with or without opportunity for oral

22 presentation, with respect to the matter in23 volved.

24 At the request of the petitioner or any other entity

25 described in paragraph (1)(A) with respect to the
60

•HR 361 EH

1 material which is the subject of the petition, or at

2 the request of any entity representative of producers

3 or exporters of such material, the Secretary shall

4 conduct public hearings with respect to the subject

5 of the petition, in which case the 30-day period may

6 be extended to 45 days.

7 (3) DETERMINATION OF MONITORING OR CON8 TROLS.—(A) Within 45 days after the end of the

9 30- or 45-day period described in paragraph (2), as

10 the case may be, the Secretary shall determine

11 whether to impose monitoring or controls, or both,

12 on the export of the material that is the subject of

13 the petition in order to carry out the policy set forth

14 in section 103(4). In making such determination,

15 the Secretary shall determine whether—

16 (i) there has been a significant increase, in

17 relation to a specific period of time, in exports

18 of such material in relation to domestic supply

19 and demand;

20 (ii) there has been a significant increase in

21 domestic price of such material or a domestic

22 shortage of such material relative to demand;

23 (iii) exports of such material are as impor24 tant as any other cause of a domestic price in-
61

•HR 361 EH

1 crease or shortage relative to demand found

2 under clause (ii);

3 (iv) a domestic price increase or shortage

4 relative to demand found under clause (ii) has

5 significantly adversely affected or may signifi6 cantly adversely affect the national economy or

7 any sector thereof, including a domestic indus8 try; and

9 (v) monitoring or controls, or both, are

10 necessary in order to carry out the policy set

11 forth in section 103(4).

12 (B) The Secretary shall publish in the Federal

13 Register a detailed statement of the reasons for the

14 Secretary’s determination under subparagraph (A)

15 of whether to impose monitoring or controls, or

16 both, including the findings of fact in support of

17 that determination.

18 (4) PUBLICATION OF REGULATIONS.—Within

19 15 days after making a determination under para20 graph (3) to impose monitoring or controls on the

21 export of a material, the Secretary shall publish in

22 the Federal Register proposed regulations with re23 spect to such monitoring or controls. Within 30 days

24 after the publication of such proposed regulations,

25 and after considering any public comments on the
62

•HR 361 EH

1 proposed regulations, the Secretary shall publish and

2 implement final regulations with respect to such

3 monitoring or controls.

4 (5) CONSOLIDATION OF PETITIONS.—For pur5 poses of publishing notices in the Federal Register

6 and scheduling public hearings pursuant to this sub7 section, the Secretary may consolidate petitions, and

8 responses to such petitions, which involve the same

9 or related materials.

10 (6) SUBSEQUENT PETITIONS ON SAME MATE11 RIAL.—If a petition with respect to a particular ma12 terial or group of materials has been considered in

13 accordance with all the procedures described in this

14 subsection, the Secretary may determine, in the ab15 sence of significantly changed circumstances, that

16 any other petition with respect to the same material

17 or group of materials which is filed within 6 months

18 after the consideration of the prior petition has been

19 completed does not merit complete consideration

20 under this subsection.

21 (7) PRECEDENCE OF PROCEDURES OVER

22 OTHER REVIEWS.—The procedures and time limits

23 set forth in this subsection with respect to a petition

24 filed under this subsection shall take precedence over

25 any review undertaken at the initiative of the Sec-
63

•HR 361 EH

1 retary with respect to the same subject as that of

2 the petition.

3 (8) TEMPORARY CONTROLS.—The Secretary

4 may impose monitoring or controls, on a temporary

5 basis, on the export of a metallic material after a pe6 tition is filed under paragraph (1)(A) with respect to

7 that material but before the Secretary makes a de8 termination under paragraph (3) with respect to

9 that material only if—

10 (A) the failure to take such temporary ac11 tions would result in irreparable harm to the

12 entity filing the petition, or to the national

13 economy or segment thereof, including a domes14 tic industry, and

15 (B) the Secretary considers such action to

16 be necessary to carry out the policy set forth in

17 section 103(4).

18 (9) OTHER AUTHORITY NOT AFFECTED.—The

19 authority under this subsection shall not be con20 strued to affect the authority of the Secretary under

21 any other provision of this title, except that if the

22 Secretary determines, on the Secretary’s own initia23 tive, to impose monitoring or controls, or both, on

24 the export of metallic materials capable of being re25 cycled, under the authority of this section, the Sec-
64

•HR 361 EH

1 retary shall publish the reasons for such action in

2 accordance with paragraph (3)(A) and (B).

3 (10) SUBMISSION AND CONSIDERATION OF AD4 DITIONAL INFORMATION.—Nothing contained in this

5 subsection shall be construed to preclude submission

6 on a confidential basis to the Secretary of informa7 tion relevant to a decision to impose or remove mon8 itoring or controls under the authority of this title,

9 or to preclude consideration of such information by

10 the Secretary in reaching decisions required under

11 this subsection. The provisions of this paragraph

12 shall not be construed to affect the applicability of

13 section 552(b) of title 5, United States Code.

14 (d) AGRICULTURAL COMMODITIES.—

15 (1) APPROVAL OF CONTROLS BY SECRETARY OF

16 AGRICULTURE.—The authority conferred by this sec17 tion shall not be exercised with respect to any agri18 cultural commodity, including fats and oils, forest

19 products, or animal hides or skins, without the ap20 proval of the Secretary of Agriculture. The Secretary

21 of Agriculture shall not approve the exercise of such

22 authority with respect to any such commodity during

23 any period for which the supply of such commodity

24 is determined by the Secretary of Agriculture to be

25 in excess of the requirements of the domestic econ-
65

•HR 361 EH

1 omy, except to the extent the President determines

2 that the controls on such agricultural commodities

3 are also imposed under section 106. The Secretary

4 of Agriculture shall, by exercising the authority

5 which the Secretary of Agriculture has under other

6 applicable provisions of law, collect data with respect

7 to export sales of animal hides and skins.

8 (2) PROTECTION OF STORED COMMODITIES

9 FROM FUTURE CONTROLS.—Upon approval of the

10 Secretary, in consultation with the Secretary of Ag11 riculture, agricultural commodities purchased by or

12 for use in a foreign country may remain in the Unit13 ed States for export at a later date free from any

14 quantitative limitations on export which may be im15 posed to carry out the policy set forth in section

16 103(4) subsequent to such approval. The Secretary

17 may not grant such approval unless the Secretary

18 receives adequate assurance and, in conjunction with

19 the Secretary of Agriculture, finds—

20 (A) that such commodities will eventually

21 be exported,

22 (B) that neither the sale nor export thereof

23 will result in an excessive drain of scarce mate24 rial and have a serious domestic inflationary

25 impact,
66

•HR 361 EH

1 (C) that storage of such commodities in

2 the United States will not unduly limit the

3 space available for storage of domestically

4 owned commodities, and

5 (D) that the purpose of such storage is to

6 establish a reserve of such commodities for later

7 use, not including resale to or use by another

8 country.

9 The Secretary may issue such regulations as may be

10 necessary to carry out this paragraph.

11 (3) PROCEDURES FOR IMPOSING CONTROLS.—

12 (A) If the President imposes export controls on any

13 agricultural commodity under section 106 or this

14 section, the President shall immediately transmit a

15 report on such action to the Congress, setting forth

16 the reasons for the controls in detail and specifying

17 the period of time, which may not exceed 1 year,

18 that the controls are proposed to be in effect. If the

19 Congress, within 60 days after the date of the re20 ceipt of the report, enacts a joint resolution pursu21 ant to paragraph (4) approving the imposition of the

22 export controls, then such controls shall remain in

23 effect for the period specified in the report, or until

24 terminated by the President, whichever occurs first.

25 If the Congress, within 60 days after the date of its
67

•HR 361 EH

1 receipt of such report, fails to adopt a joint resolu2 tion approving such controls, then such controls

3 shall cease to be effective upon the expiration of that

4 60-day period.

5 (B) The provisions of subparagraph (A) and

6 paragraph (4) shall not apply to export controls—

7 (i) which are extended under this title if

8 the controls, when imposed, were approved by

9 the Congress under subparagraph (A) and

10 paragraph (4); or

11 (ii) which are imposed with respect to a

12 country as part of the prohibition or curtail13 ment of all exports to that country.

14 (4) EXPEDITED PROCEDURES.—(A) For pur15 poses of this paragraph, the term ‘‘joint resolution’’

16 means only a joint resolution the matter after the

17 resolving clause of which is as follows: ‘‘That pursu18 ant to section 107(d)(3) of the Export Administra19 tion Act of 1996, the President may impose export

20 controls as specified in the report submitted to the

21 Congress on lll.’’, with the blank space being

22 filled with the appropriate date.

23 (B) On the day on which a report is submitted

24 to the House of Representatives and the Senate

25 under paragraph (3), a joint resolution with respect
68

•HR 361 EH

1 to the export controls specified in such report shall

2 be introduced (by request) in the House by either

3 the chairman of the Committee on International Re4 lations, for the chairman and the ranking minority

5 member of the Committee, or by Members of the

6 House designated by the chairman and ranking mi7 nority member; and shall be introduced (by request)

8 in the Senate by the majority leader of the Senate,

9 for the majority leader and the minority leader of

10 the Senate, or by Members of the Senate designated

11 by the majority leader and minority leader of the

12 Senate. If either House is not in session on the day

13 on which such a report is submitted, the joint reso14 lution shall be introduced in that House, as provided

15 in the preceding sentence, on the first day thereafter

16 on which that House is in session.

17 (C) If the committee of either House to which

18 a joint resolution has been referred has not reported

19 the joint resolution at the end of 30 days after its

20 referral, the committee shall be discharged from fur21 ther consideration of the resolution.

22 (D) A joint resolution under this paragraph

23 shall be considered in the Senate in accordance with

24 the provisions of section 601(b)(4) of the Inter25 national Security Assistance and Arms Export Con-
69

•HR 361 EH

1 trol Act of 1976. For the purpose of expediting the

2 consideration and passage of joint resolutions re3 ported to the House of Representatives by the Com4 mittee on International Relations under this para5 graph, a motion to proceed to the consideration in

6 the House of any such joint resolution shall be con7 sidered as highly privileged if offered by the chair8 man of the committee or a designee on or after the

9 third day the report on the joint resolution has been

10 available to Members pursuant to clause 2(l)(6) of

11 rule XI of the Rules of the House of Representa12 tives. The motion shall not be subject to debate or

13 to intervening motion or otherwise subject to points

14 of order, nor shall it be in order to move to recon15 sider the vote by which the motion is agreed to or

16 not agreed to. If the motion is agreed to, the joint

17 resolution shall be considered in the House and de18 batable for not to exceed two hours equally divided

19 and controlled by the chairman and ranking minor20 ity member of the committee. The previous question

21 shall be considered as ordered on the joint resolution

22 to final passage without intervening motion.

23 (E) In the case of a joint resolution described

24 in subparagraph (A), if, before the passage by one

25 House of a joint resolution of that House, that
70

•HR 361 EH

1 House receives a resolution with respect to the same

2 matter from the other House, then—

3 (i) the procedure in that House shall be

4 the same as if no joint resolution has been re5 ceived from the other House; but

6 (ii) the vote on final passage shall be on

7 the joint resolution of the other House.

8 (5) COMPUTATION OF TIME PERIODS.—In the

9 computation of the period of 60 days referred to in

10 paragraph (3)(A) and the period of 30 days referred

11 to in paragraph (4)(C), there shall be excluded the

12 days on which either House of Congress is not in

13 session because of an adjournment of more than 3

14 days to a day certain or because of an adjournment

15 of the Congress sine die.

16 (6) RULEMAKING POWER.—The provisions of

17 this subsection are enacted by the Congress—

18 (A) as an exercise of the rulemaking power

19 of the House of Representatives and the Sen20 ate, respectively, and as such, they shall be con21 sidered as part of the rules of each House, re22 spectively, or of that House to which they spe23 cifically apply, and such rules shall supersede

24 other rules only to the extent that they are in25 consistent therewith; and
71

•HR 361 EH

1 (B) with full recognition of the constitu2 tional right of either House to change such

3 rules (so far as relating to such House) at any

4 time, in the same manner, and to the same ex5 tent as in the case of any other rule of such

6 House.

7 (e) BARTER AGREEMENTS.—

8 (1) EXEMPTION FROM CONTROLS.—The expor9 tation pursuant to a barter agreement of any com10 modities which may lawfully be exported from the

11 United States, for any commodities which may law12 fully be imported into the United States, may be ex13 empted, in accordance with paragraph (2), from any

14 quantitative limitation on exports (other than any

15 reporting requirement) imposed to carry out the pol16 icy set forth in section 103(4).

17 (2) CRITERIA FOR EXEMPTION.—The Secretary

18 shall grant an exemption under paragraph (1) if the

19 Secretary finds, after consultation with the appro20 priate department or agency of the United States,

21 that—

22 (A) for the period during which the barter

23 agreement is to be performed—

24 (i) the average annual quantity of the

25 commodities to be exported pursuant to
72

•HR 361 EH

1 the barter agreement will not be required

2 to satisfy the average amount of such com3 modities estimated to be required annually

4 by the domestic economy and will be sur5 plus thereto; and

6 (ii) the average annual quantity of the

7 commodities to be imported will be more

8 than the average amount of such commod9 ities estimated to be required annually to

10 supplement domestic production; and

11 (B) the parties to such barter agreement

12 have demonstrated adequately that they intend,

13 and have the capacity, to perform such barter

14 agreement.

15 (3) DEFINITION.—For purposes of this sub16 section, the term ‘‘barter agreement’’ means any

17 agreement which is made for the exchange, without

18 monetary consideration, of any commodities pro19 duced in the United States for any commodities pro20 duced outside of the United States.

21 (4) APPLICABILITY.—This subsection shall

22 apply only with respect to barter agreements entered

23 into after September 30, 1979.

24 (f) EFFECT OF CONTROLS ON EXISTING CON25 TRACTS.—
73

•HR 361 EH

1 (1) WESTERN RED CEDAR.—Any export con2 trols imposed under section 7(i) of the Export Ad3 ministration Act of 1979 or this section shall not af4 fect any contract to harvest unprocessed western red

5 cedar from State lands which was entered into be6 fore October 1, 1979, and the performance of which

7 would make the red cedar available for export.

8 (2) OTHER CONTROLS.—Any export controls

9 imposed under this section on any agricultural com10 modity (including fats, oils, forest products, and ani11 mal hides and skins), or on any fishery product,

12 shall not affect any contract to export entered into

13 before the date on which such controls are imposed.

14 For purposes of this paragraph, the term ‘‘contract

15 to export’’ includes, but is not limited to, an export

16 sales agreement and an agreement to invest in an

17 enterprise which involves the export of commodities

18 or technology.

19 (g) OIL EXPORTS FOR USE BY UNITED STATES

20 MILITARY FACILITIES.—For purposes of this section, and

21 for purposes of any export controls imposed under this

22 title, shipments of crude oil, refined petroleum products,

23 or partially refined petroleum products from the United

24 States for use by the Department of Defense or United
74

•HR 361 EH

1 States-supported installations or facilities shall not be con2 sidered to be exports.

3 SEC. 108. FOREIGN BOYCOTTS.

4 (a) PROHIBITIONS AND EXCEPTIONS.—

5 (1) PROHIBITIONS.—In order to carry out the

6 policies set forth in section 103(9), the President

7 shall issue regulations prohibiting any United States

8 person, with respect to that person’s activities in the

9 interstate or foreign commerce of the United States,

10 from taking or knowingly agreeing to take any of

11 the following actions with intent to comply with, fur12 ther, or support any boycott fostered or imposed by

13 a foreign country against a country which is friendly

14 to the United States and which is not itself the ob15 ject of any form of boycott pursuant to United

16 States law or regulation:

17 (A) Refusing, or requiring any other per18 son to refuse, to do business with or in the boy19 cotted country, with any business concern orga20 nized under the laws of the boycotted country,

21 with any national or resident of the boycotted

22 country, or with any other person, pursuant to

23 an agreement with, a requirement of, or a re24 quest from or on behalf of the boycotting coun25 try. The mere absence of a business relationship
75

•HR 361 EH

1 with or in the boycotted country, with any busi2 ness concern organized under the laws of the

3 boycotted country, with any national or resident

4 of the boycotted country, or with any other per5 son, does not indicate the existence of the in6 tent required to establish a violation of regula7 tions issued to carry out this subparagraph.

8 (B) Refusing, or requiring any other per9 son to refuse, to employ or otherwise discrimi10 nating against any United States person on the

11 basis of the race, religion, sex, or national ori12 gin of that person or of any owner, officer, di13 rector, or employee of such person.

14 (C) Furnishing information with respect to

15 the race, religion, sex, or national origin of any

16 United States person or of any owner, officer,

17 director, or employee of such person.

18 (D) Furnishing information about whether

19 any person has, has had, or proposes to have

20 any business relationship (including a relation21 ship by way of sale, purchase, legal or commer22 cial representation, shipping or other transport,

23 insurance, investment, or supply) with or in the

24 boycotted country, with any business concern

25 organized under the laws of the boycotted coun-
76

•HR 361 EH

1 try, with any national or resident of the boy2 cotted country, or with any other person that is

3 known or believed to be restricted from having

4 any business relationship with or in the boycott5 ing country. Nothing in this paragraph shall

6 prohibit the furnishing of normal business in7 formation in a commercial context as defined by

8 the Secretary.

9 (E) Furnishing information about whether

10 any person is a member of, has made a con11 tribution to, or is otherwise associated with or

12 involved in the activities of any charitable or

13 fraternal organization which supports the boy14 cotted country.

15 (F) Paying, honoring, confirming, or other16 wise implementing a letter of credit which con17 tains any condition or requirement compliance

18 with which is prohibited by regulations issued

19 pursuant to this paragraph, and no United

20 States person shall, as a result of the applica21 tion of this paragraph, be obligated to pay or

22 otherwise honor or implement such letter of

23 credit.

24 (2) EXCEPTIONS.—Regulations issued pursuant

25 to paragraph (1) shall provide exceptions for—
77

•HR 361 EH

1 (A) complying or agreeing to comply with

2 requirements—

3 (i) prohibiting the import of commod4 ities or services from the boycotted country

5 or commodities produced or services pro6 vided by any business concern organized

7 under the laws of the boycotted country or

8 by nationals or residents of the boycotted

9 country; or

10 (ii) prohibiting the shipment of com11 modities to the boycotting country on a

12 carrier of the boycotted country, or by a

13 route other than that prescribed by the

14 boycotting country or the recipient of the

15 shipment;

16 (B) complying or agreeing to comply with

17 import and shipping document requirements

18 with respect to the country of origin, the name

19 of the carrier and route of shipment, the name

20 of the supplier of the shipment, or the name of

21 the provider of other services, except that no in22 formation knowingly furnished or conveyed in

23 response to such requirements may be stated in

24 negative, blacklisting, or similar exclusionary

25 terms, other than with respect to carriers or
78

•HR 361 EH

1 route of shipment as may be permitted by such

2 regulations in order to comply with precaution3 ary requirements protecting against war risks

4 and confiscation;

5 (C) complying or agreeing to comply in the

6 normal course of business with the unilateral

7 and specific selection by a boycotting country,

8 or national or resident thereof, of carriers, in9 surers, suppliers of services to be performed

10 within the boycotting country, or specific com11 modities which, in the normal course of busi12 ness, are identifiable by source when imported

13 into the boycotting country;

14 (D) complying or agreeing to comply with

15 export requirements of the boycotting country

16 relating to shipments or transshipment of ex17 ports to the boycotted country, to any business

18 concern of or organized under the laws of the

19 boycotted country, or to any national or resi20 dent of the boycotted country;

21 (E) compliance by an individual or agree22 ment by an individual to comply with the immi23 gration or passport requirements of any country

24 with respect to such individual or any member

25 of such individual’s family or with requests for
79

•HR 361 EH

1 information regarding requirements of employ2 ment of such individual within the boycotting

3 country; and

4 (F) compliance by a United States person

5 resident in a foreign country or agreement by

6 such person to comply with the laws of the

7 country with respect to such person’s activities

8 exclusively therein, and such regulations may

9 contain exceptions for such resident complying

10 with the laws or regulations of the foreign coun11 try governing imports into such country of

12 trademarked, trade named, or similarly specifi13 cally identifiable products, or components of

14 products for such person’s own use, including

15 the performance of contractual services within

16 that country, as may be defined by such regula17 tions.

18 (3) LIMITATION ON EXCEPTIONS.—Regulations

19 issued pursuant to paragraphs (2)(C) and (2)(F)

20 shall not provide exceptions from paragraphs (1)(B)

21 and (1)(C).

22 (4) ANTITRUST AND CIVIL RIGHTS LAWS NOT

23 AFFECTED.—Nothing in the subsection may be con24 strued to supersede or limit the operation of the

25 antitrust or civil rights laws of the United States.
80

•HR 361 EH

1 (5) EVASION.—This section shall apply to any

2 transaction or activity undertaken, by or through a

3 United States person or any other person, with in4 tent to evade the provisions of this section as imple5 mented by the regulations issued pursuant to this

6 subsection, and such regulations shall expressly pro7 vide that the exceptions set forth in paragraph (2)

8 shall not permit activities or agreements (expressed

9 or implied by a course of conduct, including a pat10 tern of responses) otherwise prohibited, which are

11 not within the intent of such exceptions.

12 (b) ADDITIONAL REGULATIONS AND REPORTS.—

13 (1) REGULATIONS.—In addition to the regula14 tions issued pursuant to subsection (a), regulations

15 issued under section 106 shall implement the policies

16 set forth in section 103(9).

17 (2) REPORTS BY UNITED STATES PERSONS.—

18 Such regulations shall require that any United

19 States person receiving a request for the furnishing

20 of information, the entering into or implementing of

21 agreements, or the taking of any other action re22 ferred to in section 103(9) shall report that fact to

23 the Secretary, together with such other information

24 concerning such request as the Secretary may re25 quire, for such action as the Secretary considers ap-
81

•HR 361 EH

1 propriate for carrying out the policies of that sec2 tion. Such person shall also report to the Secretary

3 whether such person intends to comply and whether

4 such person has complied with such request. Any re5 port filed pursuant to this paragraph shall be made

6 available promptly for public inspection and copying,

7 except that information regarding the quantity, de8 scription, and value of any commodities or tech9 nology to which such report relates may be kept con10 fidential if the Secretary determines that disclosure

11 thereof would place the United States person in12 volved at a competitive disadvantage. The Secretary

13 shall periodically transmit summaries of the infor14 mation contained in such reports to the Secretary of

15 State for such action as the Secretary of State, in

16 consultation with the Secretary, considers appro17 priate for carrying out the policies set forth in sec18 tion 103(9).

19 (c) PREEMPTION.—The provisions of this section and

20 the regulations issued under this section shall preempt any

21 law, rule, or regulation which—

22 (1) is a law, rule, or regulation of any of the

23 several States or the District of Columbia, or any of

24 the territories or possessions of the United States,

25 or of any governmental subdivision thereof; and
82

•HR 361 EH

1 (2) pertains to participation in, compliance

2 with, implementation of, or the furnishing of infor3 mation regarding restrictive trade practices or boy4 cotts fostered or imposed by foreign countries

5 against other countries.

6 SEC. 109. PROCEDURES FOR PROCESSING EXPORT LI7 CENSE APPLICATIONS; OTHER INQUIRIES.

8 (a) PRIMARY RESPONSIBILITY OF THE SEC9 RETARY.—

10 (1) IN GENERAL.—All export license applica11 tions required under this title shall be submitted by

12 the applicant to the Secretary. Subject to the proce13 dures provided in this section—

14 (A) if referral of an application to other

15 departments or agencies for review is not re16 quired, the Secretary shall, within 9 days after

17 receiving the application, issue a license or no18 tify the applicant of the intent to deny the ap19 plication; or

20 (B) if referral of the application to other

21 departments or agencies for review is required,

22 the Secretary shall, within 30 days after refer23 ral of any such application to other depart24 ments or agencies—

25 (i) issue a license;
83

•HR 361 EH

1 (ii) notify the applicant of the intent

2 to deny the application; or

3 (iii) ensure that the application is sub4 ject to the interagency resolution process

5 set forth in subsection (d).

6 (2) RECOMMENDATIONS OF OTHER AGEN7 CIES.—The Secretary shall seek information and

8 recommendations from the Department of Defense

9 and other departments and agencies of the United

10 States that are identified by the President as being

11 concerned with factors having an important bearing

12 on exports administered under this title. Such de13 partments and agencies shall cooperate fully and

14 promptly in rendering information and recommenda15 tions.

16 (3) PROCEDURES.—In guidance and regulations

17 that implement this section, the Secretary shall de18 scribe the procedures required by this section, the

19 responsibilities of the Secretary and of other depart20 ments and agencies in reviewing applications, the

21 rights of the applicant, and other relevant matters

22 affecting the review of license applications.

23 (4) CALCULATION OF PROCESSING TIMES.—In

24 calculating the processing times set forth in this sec25 tion, the Secretary shall use calendar days, except
84

•HR 361 EH

1 that if the final day for a required action falls on a

2 weekend or holiday, that action shall be taken no

3 later than the following business day.

4 (5) RELIABILITY OF PARTIES.—In reviewing

5 applications for export licenses, the Secretary may in

6 each case consider the reliability of the parties to the

7 proposed export. In making such an evaluation, the

8 Secretary may consider all sources of information,

9 including results of other United States Government

10 actions, such as actions by the Committee on For11 eign Investment in the United States, investigations

12 of diversions from authorized end uses or end users,

13 and intelligence information, except that the consid14 eration of such information in connection with the

15 evaluation of the reliability of parties shall not au16 thorize the direct or indirect disclosure of classified

17 information or sources and methods of gathering

18 classified information and shall not confer a right on

19 private parties to have access to classified informa20 tion.

21 (b) INITIAL SCREENING.—

22 (1) UPON RECEIPT OF APPLICATION.—Upon re23 ceipt of an export license application, the Secretary

24 shall enter and maintain in the records of the De-
85

•HR 361 EH

1 partment of Commerce information regarding the re2 ceipt and status of the application.

3 (2) INITIAL PROCEDURES.—Promptly upon re4 ceiving any license application, the Secretary shall—

5 (A) contact the applicant if the application

6 is improperly completed or if additional infor7 mation is required, and hold the application for

8 a reasonable time while the applicant provides

9 the necessary corrections or information, and

10 such time shall not be included in calculating

11 the time periods prescribed in this section;

12 (B) refer the application, including all in13 formation submitted by the applicant, and all

14 necessary recommendations and analyses by the

15 Secretary to the Department of Defense and

16 other departments and agencies identified by

17 the President under subsection (a)(2); and

18 (C) ensure that the classification stated on

19 the application for the export items is correct,

20 return the application if a license is not re21 quired, and, if referral to other departments or

22 agencies is not required, grant the application

23 or notify the applicant of the Secretary’s intent

24 to deny the application.
86

•HR 361 EH

1 In the event that the head of a department or agen2 cy determines that certain types of applications need

3 not be referred to the department or agency, such

4 department or agency head shall notify the Sec5 retary of the specific types of such applications that

6 the department or agency does not wish to review.

7 (c) ACTION BY OTHER DEPARTMENTS AND AGEN8 CIES.—

9 (1) REFERRAL TO OTHER AGENCIES.—The Sec10 retary shall promptly refer license applications to de11 partments and agencies under subsection (b) to

12 make recommendations and provide information to

13 the Secretary.

14 (2) RESPONSIBILITY OF REFERRAL AGEN15 CIES.—The Department of Defense and other re16 viewing departments and agencies shall organize

17 their resources and units to plan for the prompt and

18 expeditious internal dissemination of export license

19 applications, if necessary, so as to avoid delays in re20 sponding to the referral of applications.

21 (3) ADDITIONAL INFORMATION REQUESTS.—

22 Each department or agency to which a license appli23 cation is referred shall specify to the Secretary any

24 information that is not in the application that would

25 be required for the department or agency to make
87

•HR 361 EH

1 a determination with respect to the application, and

2 the Secretary shall promptly request such informa3 tion from the applicant. The time that may elapse

4 between the date the information is requested by

5 that department or agency and the date the infor6 mation is received by that department or agency

7 shall not be included in calculating the time periods

8 prescribed in this section.

9 (4) TIME PERIOD FOR ACTION BY REFERRAL

10 DEPARTMENTS AND AGENCIES.—Within 30 days

11 after receiving a referral of an application under this

12 section, the department or agency concerned shall

13 provide the Secretary with a recommendation either

14 to approve the license or to deny the license. A rec15 ommendation that the Secretary deny a license shall

16 include a statement of reasons for the recommenda17 tion that are consistent with the provisions of this

18 title, and shall cite both the specific statutory and

19 the regulatory basis for the recommendation. A de20 partment or agency that fails to provide a rec21 ommendation in accordance with this paragraph

22 within that 30-day period shall be deemed to have

23 no objection to the decision of the Secretary on the

24 application.

25 (d) INTERAGENCY RESOLUTION.—
88

•HR 361 EH

1 (1) INITIAL RESOLUTION.—The Secretary shall

2 establish, select the chairperson of, and determine

3 procedures for an interagency committee to review

4 initially all license applications on which the depart5 ments and agencies reviewing the applications under

6 this section are not in agreement. The chairperson

7 of such committee shall consider the recommenda8 tions of the departments and agencies reviewing a

9 particular application and inform them of his or her

10 decision on the application, which may include a de11 cision that the particular application requires further

12 consideration under the procedures established

13 under paragraph (2). An application may also be re14 ferred to further consideration under the procedures

15 established under paragraph (2) if an appeal from

16 the chairperson’s decision is made in writing by an

17 official of the department or agency concerned who

18 is appointed by the President by and with the advice

19 and consent of the Senate, or an officer properly

20 acting in such capacity.

21 (2) FURTHER RESOLUTION.—The President

22 shall establish a process for the further review and

23 determination of export license applications pursuant

24 to a decision by the chairperson under paragraph (1)
89

•HR 361 EH

1 or an appeal by a department or agency under para2 graph (1). Such process shall—

3 (A) be chaired by the Secretary or his or

4 her designee;

5 (B) ensure that license applications are re6 solved or referred to the President no later than

7 90 days after the date the license application is

8 initially received by the Secretary;

9 (C) provide that a department or agency

10 dissenting from the decision reached under sub11 paragraph (B) may appeal the decision to the

12 President; and

13 (D) provide that a department or agency

14 that fails to take a timely position, citing the

15 specific statutory and regulatory bases for a de16 nial, shall be deemed to have no objection to the

17 pending decision.

18 (e) ACTIONS BY THE SECRETARY IF APPLICATION

19 DENIED.—In cases where the Secretary has determined

20 that an application should be denied, the applicant shall

21 be informed in writing of—

22 (1) the determination to deny;

23 (2) the specific statutory and regulatory bases

24 for the proposed denial;
90

•HR 361 EH

1 (3) what, if any, modifications in or restrictions

2 on the items for which the license was sought would

3 allow such export to be compatible with export con4 trols imposed under this title, and which officer or

5 employee of the Department of Commerce would be

6 in a position to discuss modifications or restrictions

7 with the applicant and the specific statutory and

8 regulatory bases for imposing such modifications or

9 restrictions;

10 (4) to the extent consistent with the national

11 security and foreign policy of the United States, the

12 specific considerations that led to the determination

13 to deny the application; and

14 (5) the availability of appeal procedures.

15 The Secretary shall allow the applicant 20 days to

16 respond to the determination before the license ap17 plication is denied.

18 (f) EXCEPTIONS FROM REQUIRED TIME PERIODS.—

19 The following actions related to processing an application

20 shall not be included in calculating the time periods pre21 scribed in this section:

22 (1) AGREEMENT OF THE APPLICANT.—Delays

23 upon which the Secretary and the applicant mutu24 ally agree.
91

•HR 361 EH

1 (2) PRELICENSE CHECKS.—A prelicense check

2 that may be required to establish the identity and

3 reliability of the recipient of items controlled under

4 this title, if—

5 (A) the need for the prelicense check is de6 termined by the Secretary, or by another de7 partment or agency if the request for the

8 prelicense check is made by such department or

9 agency;

10 (B) the request for the prelicense check is

11 sent by the Secretary within 5 days after the

12 determination that the prelicense check is re13 quired; and

14 (C) the analysis of the result of the

15 prelicense check is completed by the Secretary

16 within 5 days.

17 (3) REQUESTS FOR GOVERNMENT-TO-GOVERN18 MENT ASSURANCES.—Any request by the Secretary

19 or another department or agency for government-to20 government assurances of suitable end uses of items

21 approved for export, when failure to obtain such as22 surances would result in rejection of the application,

23 if—

24 (A) the request for such assurances is sent

25 to the Secretary of State within 5 days after
92

•HR 361 EH

1 the determination that the assurances are re2 quired;

3 (B) the Secretary of State initiates the re4 quest of the relevant government within 10

5 days thereafter; and

6 (C) the license is issued within 5 days

7 after the Secretary receives the requested assur8 ances.

9 Whenever a prelicense check described in paragraph

10 (2) and assurances described in this paragraph are

11 not requested within the time periods set forth

12 therein, then the time expended for such prelicense

13 check or assurances shall be included in calculating

14 the time periods established by this section.

15 (4) MULTILATERAL REVIEW.—Multilateral re16 view of a license application to the extent that such

17 multilateral review is required by a relevant multilat18 eral regime.

19 (5) CONGRESSIONAL NOTIFICATION.—Such

20 time as is required for mandatory congressional noti21 fications under this title.

22 (6) CONSULTATIONS.—Consultation with other

23 governments, if such consultation is provided for by

24 a relevant multilateral regime as a precondition for

25 approving a license.
93

•HR 361 EH

1 (g) APPEALS.—

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

3 appropriate procedures for any applicant to appeal

4 to the Secretary the denial of an export license ap5 plication or other administrative action under this

6 title.

7 (2) FILING OF PETITION.—In any case in which

8 any action prescribed in this section is not taken on

9 a license application within the time periods estab10 lished by this section (except in the case of a time

11 period extended under subsection (f) of which the

12 applicant is notified), the applicant may file a peti13 tion with the Secretary requesting compliance with

14 the requirements of this section. When such petition

15 is filed, the Secretary shall take immediate steps to

16 correct the situation giving rise to the petition and

17 shall immediately notify the applicant of such steps.

18 (3) BRINGING COURT ACTION.—If, within 20

19 days after a petition is filed under paragraph (2),

20 the processing of the application has not been

21 brought into conformity with the requirements of

22 this section, or the application has been brought into

23 conformity 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-
94

•HR 361 EH

1 trict court for an order requiring compliance with

2 the time periods required by this section. The Unit3 ed States district courts shall have jurisdiction to

4 provide such relief, as appropriate.

5 (h) CLASSIFICATION REQUESTS AND OTHER INQUIR6 IES.—

7 (1) CLASSIFICATION REQUESTS.—In any case

8 in which the Secretary receives a written request

9 asking for the proper classification of an item on the

10 control index, the Secretary shall, within 14 days

11 after receiving the request, inform the person mak12 ing the request of the proper classification.

13 (2) OTHER INQUIRIES.—In any case in which

14 the Secretary receives a written request for informa15 tion about the applicability of licensing requirements

16 under this title to a proposed export transaction or

17 series of transactions, the Secretary shall, within 30

18 days after receiving the request, reply with that in19 formation to the person making the request.

20 SEC. 110. VIOLATIONS.

21 (a) CRIMINAL PENALTIES.—

22 (1) VIOLATIONS BY AN INDIVIDUAL.—Except as

23 provided in paragraph (3), any individual who know24 ingly violates or conspires to or attempts to violate

25 any provision of this title or any regulation, license,
95

•HR 361 EH

1 or order issued under this title shall be fined not

2 more than 5 times the value of the exports involved

3 or $500,000, whichever is greater, or imprisoned not

4 more than 10 years, or both.

5 (2) VIOLATIONS BY A PERSON OTHER THAN AN

6 INDIVIDUAL.—Except as provided in paragraph (3),

7 any person other than an individual who knowingly

8 violates or conspires to or attempts to violate any

9 provision of this title or any regulation, license, or

10 order issued under this title shall be fined not more

11 than 10 times the value of the exports involved or

12 $1,000,000, whichever is greater.

13 (3) ANTIBOYCOTT VIOLATIONS.—

14 (A) Any individual who knowingly violates

15 or conspires to or attempts to violate any regu16 lation or order issued under section 108 shall

17 be fined, for each violation, not more than 5

18 times the value of the exports involved or

19 $250,000, whichever is greater, or imprisoned

20 not more than 10 years, or both.

21 (B) Any person other than an individual

22 who knowingly violates or conspires to or at23 tempts to violate any regulation or order issued

24 under section 108 shall be fined, for each viola25 tion, not more than 5 times the value of the ex-
96

•HR 361 EH

1 ports involved or $500,000, whichever is great2 er.

3 (b) FORFEITURE OF PROPERTY INTEREST AND PRO4 CEEDS.—

5 (1) FORFEITURE.—Any person who is convicted

6 under subsection (a)(1) or (2) shall, in addition to

7 any other penalty, forfeit to the United States—

8 (A) any of that person’s interest in, secu9 rity of, claim against, or property or contractual

10 rights of any kind in the commodities or tan11 gible items that were the subject of the viola12 tion;

13 (B) any of that person’s interest in, secu14 rity of, claim against, or property or contractual

15 rights of any kind in tangible property that was

16 used in the export or attempt to export that

17 was the subject of the violation; and

18 (C) any of that person’s property con19 stituting, or derived from, any proceeds ob20 tained directly or indirectly as a result of the

21 violation.

22 (2) PROCEDURES.—The procedures in any for23 feiture under this subsection, and the duties and au24 thority of the courts of the United States and the

25 Attorney General with respect to any forfeiture ac-
97

•HR 361 EH

1 tion under this subsection or with respect to any

2 property that may be subject to forfeiture under this

3 subsection, shall be governed by the provisions of

4 chapter 46 of title 18, United States Code, to the

5 same extent as property subject to forfeiture under

6 that chapter.

7 (c) CIVIL PENALTIES; ADMINISTRATIVE SANC8 TIONS.—

9 (1) CIVIL PENALTIES.—The Secretary may im10 pose a civil penalty of not more than $250,000 for

11 each violation of this title or any regulation, license,

12 or order issued under this title, either in addition to

13 or in lieu of any other liability or penalty which may

14 be imposed, except that the civil penalty for each

15 such violation of regulations issued under section

16 108 may not exceed $50,000.

17 (2) DENIAL OF EXPORT PRIVILEGES.—The Sec18 retary may deny the export privileges of any person,

19 including suspending or revoking the authority of

20 any person to export or receive United States-origin

21 commodities or technology subject to this title, on

22 account of any violation of this title or any regula23 tion, license, or order issued under this title.

24 (d) PAYMENT OF CIVIL PENALTIES.—The payment

25 of any civil penalty imposed under subsection (c) may be
98

•HR 361 EH

1 made a condition, for a period not exceeding 1 year after

2 the penalty has become due but has not been paid, to the

3 granting, restoration, or continuing validity of any export

4 license, permission, or privilege granted or to be granted

5 to the person upon whom such penalty is imposed. In addi6 tion, the payment of any civil penalty imposed under sub7 section (c) may be deferred or suspended in whole or in

8 part for a period of time no longer than any probation

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

10 upon such person. Such deferral or suspension shall not

11 operate as a bar to the collection of the penalty in the

12 event that the conditions of the suspension, deferral, or

13 probation are not fulfilled.

14 (e) REFUNDS.—Any amount paid in satisfaction of

15 any civil penalty imposed under subsection (c) shall be cov16 ered into the Treasury as a miscellaneous receipt. The

17 head of the department or agency concerned may, in his

18 or her discretion, refund any such civil penalty imposed

19 under subsection (c), within 2 years after payment, on the

20 ground of a material error of fact or law in the imposition

21 of the penalty. Notwithstanding section 1346(a) of title

22 28, United States Code, no action for the refund of any

23 such penalty may be maintained in any court.

24 (f) EFFECT OF OTHER CONVICTIONS.—
99

•HR 361 EH

1 (1) DENIAL OF EXPORT PRIVILEGES.—Any per2 son convicted of a violation of—

3 (A) this title or the Export Administration

4 Act of 1979,

5 (B) the International Emergency Economic

6 Powers Act,

7 (C) section 793, 794, or 798 of title 18,

8 United States Code,

9 (D) section 4(b) of the Internal Security

10 Act of 1950 (50 U.S.C. 783(b)),

11 (E) section 38 of the Arms Export Control

12 Act,

13 (F) section 16 of the Trading with the

14 Enemy Act (59 U.S.C. App. 16),

15 (G) any regulation, license, or order issued

16 under any provision of law listed in subpara17 graph (A), (B), (C), (D), (E), or (F), or

18 (H) section 371 or 1001 of title 18, United

19 States Code, if in connection with the export of

20 commodities or technology controlled under this

21 title, any regulation, license or order issued

22 under the International Emergency Economic

23 Powers Act, or defense articles or defense serv24 ices controlled under the Arms Export Control

25 Act,
100

•HR 361 EH

1 may, at the discretion of the Secretary, be denied ex2 port privileges under this title for a period of up to

3 10 years from the date of the conviction. The Sec4 retary may also revoke any export license under this

5 title in which such person had an interest at the

6 time of the conviction.

7 (2) RELATED PERSONS.—The Secretary may

8 exercise the authority under paragraph (1) with re9 spect to any person related, through affiliation, own10 ership, control, or position of responsibility, to any

11 person convicted of any violation of a law set forth

12 in paragraph (1), upon a showing of such relation13 ship with the convicted person, after providing notice

14 and opportunity for a hearing.

15 (g) STATUTE OF LIMITATIONS.—Any proceeding in

16 which a civil penalty or other administrative sanction

17 (other than a temporary denial order) is sought under sub18 section (c) may not be instituted more than 5 years after

19 the date of the alleged violation, except that, in any case

20 in which a criminal indictment alleging a violation of this

21 title is returned within the time limits prescribed by law

22 for the institution of such action, the statute of limitations

23 for bringing a proceeding to impose such a civil penalty

24 or other administrative sanction under this title shall,

25 upon the return of the criminal indictment, be tolled
101

•HR 361 EH

1 against all persons named as a defendant. The tolling of

2 the statute of limitations shall continue for a period of

3 6 months from the date a conviction becomes final or the

4 indictment is dismissed.

5 (h) VIOLATIONS DEFINED BY REGULATION.—Noth6 ing in this section shall limit the power of the Secretary

7 to define by regulation violations under this title.

8 (i) OTHER AUTHORITIES.—Nothing in subsection

9 (c), (d), (e), (f), or (g) limits—

10 (1) the availability of other administrative or

11 judicial remedies with respect to violations of this

12 title, or any regulation, order, or license issued

13 under this title;

14 (2) the authority to compromise and settle ad15 ministrative proceedings brought with respect to any

16 such violation; or

17 (3) the authority to compromise, remit, or miti18 gate seizures and forfeitures pursuant to section

19 1(b) of title VI of the Act of June 15, 1917 (22

20 U.S.C. 401(b)).

21 (j) PRIVATE RIGHT OF ACTION.—Any person—

22 (1) against whom an act of discrimination de23 scribed in section 108(a)(1)(B) is committed, or

24 (2) who, on account of a violation of the regula25 tions issued pursuant to section 108(a), loses an op-
102

•HR 361 EH

1 portunity to engage in a commercial venture pursu2 ant to a contract, joint venture, or other commercial

3 transaction, including an opportunity to bid or ten4 der an offer for a contract,

5 may bring an action in an appropriate district court of

6 the United States against the United States person com7 mitting the violation, for recovery of actual damages in8 curred on account of such act of discrimination or lost

9 opportunity. In any such action the court may award puni10 tive damages. An action may be brought under this sub11 section against a United States person whether or not the

12 United States person has been determined under this sec13 tion to have violated the regulations issued pursuant to

14 section 108(a) on account of which the action is brought.

15 In an action brought under this subsection, unless the

16 court finds that the interests of justice require otherwise,

17 the court shall designate the substantially prevailing party

18 or parties in the action, and the remaining parties shall

19 pay the reasonable attorneys’ fees of the substantially pre20 vailing party or parties in such proportion as the court

21 shall determine.

22 SEC. 111. CONTROLLING PROLIFERATION ACTIVITY.

23 (a) PROLIFERATION CONTROLS.—

24 (1) MISSILE TECHNOLOGY CONTROLS.—The

25 Secretary, in consultation with the Secretary of De-
103

•HR 361 EH

1 fense and the heads of other appropriate depart2 ments and agencies and consistent with sections 103

3 and 104(g)—

4 (A) shall establish and maintain, as part of

5 the control index established under section

6 104(b), dual-use items on the MTCR Annex;

7 (B) may include, as part of the control

8 index established under section 104(b), items

9 that—

10 (i) would make a material contribu11 tion to the design, development, test, pro12 duction, stockpiling, or use of missile deliv13 ery systems, and

14 (ii) are not included in the MTCR

15 Annex but which the United States has

16 proposed to the other members of the

17 MTCR for inclusion in the MTCR Annex;

18 and

19 (C) shall require a license under paragraph

20 (1) or (2) of section 104(a), consistent with the

21 arrangements of the MTCR, for—

22 (i) any export of items on the control

23 index pursuant to subparagraphs (A) and

24 (B) to any country; and
104

•HR 361 EH

1 (ii) any export of items that the ex2 porter knows is destined for a project or

3 facility for the design, development, or

4 manufacture of a missile in a country that

5 is not an adherent to the MTCR.

6 (2) CHEMICAL AND BIOLOGICAL WEAPONS CON7 TROLS.—The Secretary, in consultation with the

8 Secretary of Defense and the heads of other appro9 priate departments and agencies and consistent with

10 sections 103 and 104(g)—

11 (A) shall establish and maintain, as part of

12 the control index established under section

13 104(b), dual-use items listed by the Australia

14 Group or the Chemical Weapons Convention;

15 (B) may include, as part of the control

16 index established under section 104(b), items

17 that—

18 (i) would make a material contribu19 tion to the design, development, test, pro20 duction, stockpiling, or use of chemical or

21 biological weapons, and

22 (ii) are not contained on the list of

23 controlled items of the Australia Group but

24 which the United States has proposed to
105

•HR 361 EH

1 the other members of the Australia Group

2 for inclusion in such list; and

3 (C) shall require a license under paragraph

4 (1) or (2) of section 104(a), consistent with the

5 arrangements of the Australia Group and the

6 Chemical Weapons Convention, for—

7 (i) any export of items on the control

8 index pursuant to subparagraphs (A) and

9 (B) to any country, except as provided for

10 in section 105(e); and

11 (ii) any export of items that the ex12 porter knows is destined for a project or

13 facility for the design, development, or

14 manufacture of a chemical or biological

15 weapon.

16 (3) POLICY OF DENIAL OF LICENSES.—(A) Li17 censes under paragraph (1)(C) should in general be

18 denied if the ultimate consignee of the commodities

19 or technology is a facility in a country that is not

20 an adherent to the MTCR and the facility is de21 signed to develop or build missiles.

22 (B) Licenses under paragraph (1)(C) shall be

23 denied if the ultimate consignee of the commodities

24 or technology is a facility in a country the govern25 ment of which has been determined under section
106

•HR 361 EH

1 106(i)(1) to have repeatedly provided support for

2 acts of international terrorism.

3 (b) TECHNICAL AMENDMENTS TO ARMS EXPORT

4 CONTROL ACT.—(1) Section 71(a) of the Arms Export

5 Control Act (22 U.S.C. 2797(a)) is amended by striking

6 ‘‘6(l) of the Export Administration Act of 1979’’ and in7 serting ‘‘111(a) of the Export Administration Act of

8 1996’’.

9 (2) Section 81(a)(1) of the Arms Export Control Act

10 (22 U.S.C. 2798(a)(1)) is amended in subparagraphs (A)

11 and (B) by inserting ‘‘under this Act’’ after ‘‘United

12 States’’ the second place it appears in each subparagraph.

13 (c) GENERAL PROHIBITION.—Notwithstanding any

14 other provision of this title, the export of commodities or

15 technology shall be prohibited if the ultimate consignee is

16 a program or activity for the design, development, manu17 facture, stockpiling, testing, or other acquisition of a

18 weapon of mass destruction or missile in a country that

19 is not an adherent to the regime controlling such weapon

20 or missile, unless the Secretary determines such export

21 would not make a material contribution to such program

22 or activity.

23 (d) CHEMICAL AND BIOLOGICAL WEAPONS PRO24 LIFERATION SANCTIONS.—

25 (1) IMPOSITION OF SANCTIONS.—
107

•HR 361 EH

1 (A) DETERMINATION BY THE PRESI2 DENT.—Except as provided in paragraph

3 (2)(B), the President shall impose both of the

4 sanctions described in paragraph (3) if the

5 President determines that a foreign person, on

6 or after the date of the enactment of this Act,

7 has knowingly and materially contributed—

8 (i) through the export from the Unit9 ed States of any goods or technology that

10 are subject to the jurisdiction of the Unit11 ed States under this title, or

12 (ii) through the export from any other

13 country of any goods or technology that

14 would be, if they were United States goods

15 or technology, subject to the jurisdiction of

16 the United States under this title,

17 to the efforts by any foreign country, project, or

18 entity described in subparagraph (B) to use, de19 velop, produce, stockpile, or otherwise acquire

20 chemical or biological weapons.

21 (B) COUNTRIES, PROJECTS, OR ENTITIES

22 RECEIVING ASSISTANCE.—Subparagraph (A)

23 applies in the case of—
108

•HR 361 EH

1 (i) any foreign country that the Presi2 dent determines has, at any time after

3 January 1, 1980—

4 (I) used chemical or biological

5 weapons in violation of international

6 law;

7 (II) used lethal chemical or bio8 logical weapons against its own na9 tionals; or

10 (III) made substantial prepara11 tions to engage in the activities de12 scribed in subclause (I) or (II);

13 (ii) any foreign country whose govern14 ment is determined for purposes of section

15 106(i) to be a government that has repeat16 edly provided support for acts of inter17 national terrorism; or

18 (iii) any other foreign country,

19 project, or entity designated by the Presi20 dent for purposes of this subsection.

21 (C) PERSONS AGAINST WHICH SANCTIONS

22 ARE TO BE IMPOSED.—Sanctions shall be im23 posed pursuant to subparagraph (A) on—
109

•HR 361 EH

1 (i) the foreign person with respect to

2 which the President makes the determina3 tion described in that subparagraph;

4 (ii) any successor entity to that for5 eign person;

6 (iii) any foreign person that is a par7 ent or subsidiary of that foreign person if

8 that parent or subsidiary knowingly as9 sisted in the activities which were the basis

10 of that determination; and

11 (iv) any foreign person that is an af12 filiate of that foreign person if that affili13 ate knowingly assisted in the activities

14 which were the basis of that determination

15 and if that affiliate is controlled in fact by

16 that foreign person.

17 (2) CONSULTATIONS WITH AND ACTIONS BY

18 FOREIGN GOVERNMENT OF JURISDICTION.—

19 (A) CONSULTATIONS.—If the President

20 makes the determinations described in para21 graph (1)(A) with respect to a foreign person,

22 the Congress urges the President to initiate

23 consultations immediately with the government

24 with primary jurisdiction over that foreign per-
110

•HR 361 EH

1 son with respect to the imposition of sanctions

2 pursuant to this subsection.

3 (B) ACTIONS BY GOVERNMENT OF JURIS4 DICTION.—In order to pursue such consulta5 tions with that government, the President may

6 delay imposition of sanctions pursuant to this

7 subsection for a period of up to 90 days. Fol8 lowing these consultations, the President shall

9 impose sanctions unless the President deter10 mines and certifies to the Congress that that

11 government has taken specific and effective ac12 tions, including appropriate penalties, to termi13 nate the involvement of the foreign person in

14 the activities described in paragraph (1)(A).

15 The President may delay imposition of sanc16 tions for an additional period of up to 90 days

17 if the President determines and certifies to the

18 Congress that that government is in the process

19 of taking the actions described in the preceding

20 sentence.

21 (C) REPORT TO CONGRESS.—The Presi22 dent shall report to the Congress, not later than

23 90 days after making a determination under

24 paragraph (1)(A), on the status of consultations

25 with the appropriate government under this
111

•HR 361 EH

1 subsection, and the basis for any determination

2 under subparagraph (B) of this paragraph that

3 such government has taken specific corrective

4 actions.

5 (3) SANCTIONS.—

6 (A) DESCRIPTION OF SANCTIONS.—The

7 sanctions to be imposed pursuant to paragraph

8 (1)(A) are, except as provided in subparagraph

9 (B) of this paragraph, the following:

10 (i) PROCUREMENT SANCTION.—The

11 United States Government shall not pro12 cure, or enter into any contract for the

13 procurement of, any goods or services from

14 any person described in paragraph (1)(C).

15 (ii) IMPORT SANCTIONS.—The impor16 tation into the United States of products

17 produced by any person described in para18 graph (1)(C) shall be prohibited.

19 (B) EXCEPTIONS.—The President shall

20 not be required to apply or maintain sanctions

21 under this subsection—

22 (i) in the case of procurement of de23 fense articles or defense services—

24 (I) under existing contracts or

25 subcontracts, including the exercise of
112

•HR 361 EH

1 options for production quantities to

2 satisfy United States operational mili3 tary requirements;

4 (II) if the President determines

5 that the person or other entity to

6 which the sanctions would otherwise

7 be applied is a sole source supplier of

8 the defense articles or services, that

9 the defense articles or services are es10 sential, and that alternative sources

11 are not readily or reasonably avail12 able; or

13 (III) if the President determines

14 that such articles or services are es15 sential to the national security under

16 defense coproduction agreements;

17 (ii) to products or services provided

18 under contracts entered into before the

19 date on which the President publishes his

20 intention to impose sanctions;

21 (iii) to—

22 (I) spare parts,

23 (II) component parts, but not

24 finished products, essential to United

25 States products or production, or
113

•HR 361 EH

1 (III) routine servicing and main2 tenance of products, to the extent that

3 alternative sources are not readily or

4 reasonably available;

5 (iv) to information and technology es6 sential to United States products or pro7 duction; or

8 (v) to medical or other humanitarian

9 items.

10 (4) TERMINATION OF SANCTIONS.—The sanc11 tions imposed pursuant to this subsection shall apply

12 for a period of at least 12 months following the im13 position of sanctions and shall cease to apply there14 after only if the President determines and certifies

15 to the Congress that reliable information indicates

16 that the foreign person with respect to which the de17 termination was made under paragraph (1)(A) has

18 ceased to aid or abet any foreign government,

19 project, or entity in its efforts to acquire chemical or

20 biological weapons capability as described in that

21 paragraph.

22 (5) WAIVER.—

23 (A) CRITERION FOR WAIVER.—The Presi24 dent may waive the application of any sanction

25 imposed on any person pursuant to this sub-
114

•HR 361 EH

1 section, after the end of the 12-month period

2 beginning on the date on which that sanction

3 was imposed on that person, if the President

4 determines and certifies to the Congress that

5 such waiver is important to the national secu6 rity interests of the United States.

7 (B) NOTIFICATION OF AND REPORT TO

8 CONGRESS.—If the President decides to exercise

9 the waiver authority provided in subparagraph

10 (A), the President shall so notify the Congress

11 not less than 20 days before the waiver takes

12 effect. Such notification shall include a report

13 fully articulating the rationale and cir14 cumstances which led the President to exercise

15 the waiver authority.

16 (6) DEFINITION OF FOREIGN PERSON.—For

17 purposes of this subsection, the term ‘‘foreign per18 son’’ means—

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

20 the United States or an alien lawfully admitted

21 for permanent residence to the United States;

22 or

23 (B) a corporation, partnership, or other

24 entity which is created or organized under the

25 laws of a foreign country or which has its prin-
115

•HR 361 EH

1 cipal place of business outside the United

2 States.

3 (e) MISSILE PROLIFERATION CONTROL VIOLA4 TIONS.—

5 (1) VIOLATIONS BY UNITED STATES PER6 SONS.—

7 (A) SANCTIONS.—(i) If the President de8 termines that a United States person know9 ingly—

10 (I) exports, transfers, or otherwise en11 gages in the trade of any item on the

12 MTCR Annex, in violation of the provi13 sions of section 38 (22 U.S.C. 2778) or

14 chapter 7 of the Arms Export Control Act,

15 this title, or any regulations or orders is16 sued under any such provisions,

17 (II) conspires to or attempts to en18 gage in such export, transfer, or trade, or

19 (III) facilitates such export, transfer,

20 or trade by any other person,

21 then the President shall impose the applicable

22 sanctions described in clause (ii).

23 (ii) The sanctions which apply to a United

24 States person under clause (i) are the following:
116

•HR 361 EH

1 (I) If the item on the MTCR Annex

2 involved in the export, transfer, or trade is

3 missile equipment or technology within cat4 egory II of the MTCR Annex, then the

5 President shall deny to such United States

6 person, for a period of 2 years, licenses for

7 the transfer of missile equipment or tech8 nology controlled under this title.

9 (II) If the item on the MTCR Annex

10 involved in the export, transfer, or trade is

11 missile equipment or technology within cat12 egory I of the MTCR Annex, then the

13 President shall deny to such United States

14 person, for a period of not less than 2

15 years, all licenses for items the export of

16 which is controlled under this title.

17 (B) DISCRETIONARY SANCTIONS.—In the

18 case of any determination referred to in sub19 paragraph (A), the Secretary may pursue any

20 other appropriate penalties under section 110.

21 (C) WAIVER.—The President may waive

22 the imposition of sanctions under subparagraph

23 (A) on a person with respect to a product or

24 service if the President certifies to the Congress

25 that—
117

•HR 361 EH

1 (i) the product or service is essential

2 to the national security of the United

3 States; and

4 (ii) such person is a sole source sup5 plier of the product or service, the product

6 or service is not available from any alter7 native reliable supplier, and the need for

8 the product or service cannot be met in a

9 timely manner by improved manufacturing

10 processes or technological developments.

11 (2) TRANSFERS OF MISSILE EQUIPMENT OR

12 TECHNOLOGY BY FOREIGN PERSONS.—

13 (A) SANCTIONS.—(i) Subject to subpara14 graphs (C) through (G), if the President deter15 mines that a foreign person, after the date of

16 the enactment of this section, knowingly—

17 (I) exports, transfers, or otherwise en18 gages in the trade of any MTCR equip19 ment or technology that contributes to the

20 design, development, or production of mis21 siles in a country that is not an adherent

22 to the MTCR and would be, if it were

23 United States-origin equipment or tech24 nology, subject to the jurisdiction of the

25 United States under this title,
118

•HR 361 EH

1 (II) conspires to or attempts to en2 gage in such export, transfer, or trade, or

3 (III) facilitates such export, transfer,

4 or trade by any other person,

5 or if the President has made a determination

6 with respect to a foreign person, under section

7 73(a) of the Arms Export Control Act, then the

8 President shall impose on that foreign person

9 the applicable sanctions under clause (ii).

10 (ii) The sanctions which apply to a foreign

11 person under clause (i) are the following:

12 (I) If the item involved in the export,

13 transfer, or trade is within category II of

14 the MTCR Annex, then the President shall

15 deny, for a period of 2 years, licenses for

16 the transfer to such foreign person of mis17 sile equipment or technology the export of

18 which is controlled under this title.

19 (II) If the item involved in the export,

20 transfer, or trade is within category I of

21 the MTCR Annex, then the President shall

22 deny, for a period of not less than 2 years,

23 licenses for the transfer to such foreign

24 person of items the export of which is con25 trolled under this title.
119

•HR 361 EH

1 (III) If, in addition to actions taken

2 under subclauses (I) and (II), the Presi3 dent determines that the export, transfer,

4 or trade has substantially contributed to

5 the design, development, or production of

6 missiles in a country that is not an adher7 ent to the MTCR, then the President shall

8 prohibit, for a period of not less than 2

9 years, the importation into the United

10 States of products produced by that for11 eign person.

12 (B) INAPPLICABILITY WITH RESPECT TO

13 MTCR ADHERENTS.—Subparagraph (A) does

14 not apply with respect to—

15 (i) any export, transfer, or trading ac16 tivity that is authorized by the laws of an

17 adherent to the MTCR, if such authoriza18 tion is not obtained by misrepresentation

19 or fraud; or

20 (ii) any export, transfer, or trade of

21 an item to an end user in a country that

22 is an adherent to the MTCR.

23 (C) EFFECT OF ENFORCEMENT ACTIONS

24 BY MTCR ADHERENTS.—Sanctions set forth in

25 subparagraph (A) may not be imposed under
120

•HR 361 EH

1 this paragraph on a person with respect to acts

2 described in such subparagraph or, if such

3 sanctions are in effect against a person on ac4 count of such acts, such sanctions shall be ter5 minated, if an adherent to the MTCR is taking

6 judicial or other enforcement against that per7 son with respect to such acts, or that person

8 has been found by the government of an adher9 ent to the MTCR to be innocent of wrongdoing

10 with respect to such acts.

11 (D) ADVISORY OPINIONS.—The Secretary,

12 in consultation with the Secretary of State and

13 the Secretary of Defense, may, upon the re14 quest of any person, issue an advisory opinion

15 to that person as to whether a proposed activity

16 by that person would subject that person to

17 sanctions under this paragraph. Any person

18 who relies in good faith on such an advisory

19 opinion which states that the proposed activity

20 would not subject a person to such sanctions,

21 and any person who thereafter engages in such

22 activity, may not be made subject to such sanc23 tions on account of such activity.

24 (E) WAIVER AND REPORT TO CONGRESS.—

25 (i) In any case other than one in which an advi-
121

•HR 361 EH

1 sory opinion has been issued under subpara2 graph (D) stating that a proposed activity

3 would not subject a person to sanctions under

4 this paragraph, the President may waive the

5 application of subparagraph (A) to a foreign

6 person if the President determines that such

7 waiver is essential to the national security of

8 the United States.

9 (ii) In the event that the President decides

10 to apply the waiver described in clause (i), the

11 President shall so notify the Congress not less

12 than 20 working days before issuing the waiver.

13 Such notification shall include a report fully ar14 ticulating the rationale and circumstances

15 which led the President to apply the waiver.

16 (F) ADDITIONAL WAIVER.—The President

17 may waive the imposition of sanctions under

18 subparagraph (A) on a person with respect to

19 a product or service if the President certifies to

20 the Congress that—

21 (i) the product or service is essential

22 to the national security of the United

23 States; and

24 (ii) such person is a sole source sup25 plier of the product or service, the product
122

•HR 361 EH

1 or service is not available from any alter2 native reliable supplier, and the need for

3 the product or service cannot be met in a

4 timely manner by improved manufacturing

5 processes or technological developments.

6 (G) EXCEPTIONS FROM IMPORT SANC7 TIONS.—The President shall not apply the

8 sanction under this subsection prohibiting the

9 importation of the products of a foreign per10 son—

11 (i) in the case of procurement of de12 fense articles or defense services—

13 (I) under existing contracts or

14 subcontracts, including the exercise of

15 options for production quantities to

16 satisfy requirements essential to the

17 national security of the United States;

18 (II) if the President determines

19 that the person to which the sanctions

20 would be applied is a sole source sup21 plier of the defense articles and serv22 ices, that the defense articles or serv23 ices are essential to the national secu24 rity of the United States, and that al-
123

•HR 361 EH

1 ternative sources are not readily or

2 reasonably available; or

3 (III) if the President determines

4 that such articles or services are es5 sential to the national security of the

6 United States under defense co7 production agreements;

8 (ii) to products or services provided

9 under contracts entered into before the

10 date on which the President publishes his

11 intention to impose the sanctions; or

12 (iii) to—

13 (I) spare parts,

14 (II) component parts, but not

15 finished products, essential to United

16 States products or production,

17 (III) routine services and mainte18 nance of products, to the extent that

19 alternative sources are not readily or

20 reasonably available, or

21 (IV) information and technology

22 essential to United States products or

23 production.

24 (3) DEFINITIONS.—For purposes of this sub25 section—
124

•HR 361 EH

1 (A) the terms ‘‘missile equipment or tech2 nology’’ and ‘‘MTCR equipment or technology’’

3 mean those items listed in category I or cat4 egory II of the MTCR Annex;

5 (B) the term ‘‘foreign person’’ means any

6 person other than a United States person;

7 (C)(i) the term ‘‘person’’ means a natural

8 person as well as a corporation, business asso9 ciation, partnership, society, trust, any other

10 nongovernmental entity, organization, or group,

11 and any governmental entity operating as a

12 business enterprise, and any successor of any

13 such entity; and

14 (ii) in the case of a country where it may

15 be impossible to identify a specific governmental

16 entity referred to in clause (i), the term ‘‘per17 son’’ means—

18 (I) all activities of that government

19 relating to the development or production

20 of any missile equipment or technology;

21 and

22 (II) all activities of that government

23 affecting the development or production of

24 aircraft, electronics, and space systems or

25 equipment; and
125

•HR 361 EH

1 (D) the term ‘‘otherwise engaged in the

2 trade of’’ means, with respect to a particular

3 export or transfer, to be a freight forwarder or

4 designated exporting agent, or a consignee or

5 end user of the item to be exported or trans6 ferred.

7 (f) EFFECT ON OTHER LAWS.—The provisions of

8 this section do not affect any activities subject to the re9 porting requirements contained in title V of the National

10 Security Act of 1947.

11 (g) SEEKING MULTILATERAL SUPPORT FOR UNILAT12 ERAL SANCTIONS.—The Secretary of State, in consulta13 tion with appropriate departments and agencies, shall seek

14 the support of other countries for sanctions imposed under

15 this section.

16 SEC. 112. ADMINISTRATIVE AND JUDICIAL REVIEW.

17 (a) APPLICABILITY.—

18 (1) EXEMPTIONS FROM ADMINISTRATIVE PRO19 CEDURE.—Except as provided in this section, the

20 functions exercised under this title are excluded

21 from the operation of sections 551, 553 through

22 559, and 701 through 706 of title 5, United States

23 Code.

24 (2) JUDICIAL REVIEW.—Except as otherwise

25 provided in this section, a final agency action under
126

•HR 361 EH

1 this title may be reviewed by appeal to the United

2 States Court of Appeals for the District of Columbia

3 Circuit, to the extent provided in this paragraph.

4 The court’s review in any such appeal shall be lim5 ited to determining whether—

6 (A) a regulation—

7 (i) fails to take an action required by

8 this title;

9 (ii) takes an action prohibited by this

10 title; or

11 (iii) otherwise violates this title;

12 (B) an agency action violates this title;

13 (C) an agency action violates an agency

14 regulation establishing time requirements or

15 other procedural requirements of a non-discre16 tionary nature;

17 (D) the issuance of regulations required by

18 this title complies with time restrictions im19 posed by this title;

20 (E) license decisions are made and appeals

21 thereof are concluded in compliance with time

22 restrictions imposed by this title;

23 (F) classifications and advisory opinions

24 are issued in compliance with time restrictions

25 imposed by this title;
127

•HR 361 EH

1 (G) unfair impact determinations under

2 section 114(k) are in compliance with time re3 strictions imposed by that section; or

4 (H) the United States has complied with

5 the requirements of section 114(k) after an un6 fair impact determination has been made.

7 (b) PROCEDURES RELATING TO CIVIL PENALTIES

8 AND SANCTIONS.—

9 (1) ADMINISTRATIVE PROCEDURES.—Any ad10 ministrative sanction imposed under section 110(c)

11 may be imposed only after notice and opportunity

12 for an agency hearing on the record in accordance

13 with sections 554 through 557 of title 5, United

14 States Code. The imposition of any such administra15 tive sanction shall be subject to judicial review in ac16 cordance with sections 701 through 706 of title 5,

17 United States Code.

18 (2) AVAILABILITY OF CHARGING LETTER.—Any

19 charging letter or other document initiating adminis20 trative proceedings for the imposition of sanctions

21 for violations of the regulations issued under section

22 108(a) shall be made available for public inspection

23 and copying.

24 (c) COLLECTION.—If any person fails to pay a civil

25 penalty imposed under section 110(c), the Secretary may
128

•HR 361 EH

1 ask the Attorney General to bring a civil action in an ap2 propriate district court to recover the amount imposed

3 (plus interest at currently prevailing rates from the date

4 of the final order). No such action may be commenced

5 more than 5 years after the order imposing the civil pen6 alty becomes final. In such an action, the validity, amount,

7 and appropriateness of such penalty shall not be subject

8 to review.

9 (d) IMPOSITION OF TEMPORARY DENIAL ORDERS.—

10 (1) GROUNDS FOR IMPOSITION.—In any case in

11 which there is reasonable cause to believe that a per12 son is engaged in or is about to engage in any act

13 or practice which constitutes or would constitute a

14 violation of this title, or any regulation, order, or li15 cense issued under this title, including any diversion

16 of goods or technology from an authorized end use

17 or end user, or in any case in which a criminal in18 dictment has been returned against a person alleging

19 a violation of this title or any of the statutes listed

20 in section 110(f), the Secretary may, without a hear21 ing, issue an order temporarily denying that person’s

22 United States export privileges (hereafter in this

23 subsection referred to a ‘‘temporary denial order’’).

24 A temporary denial order may be effective for no

25 longer than 180 days, but may be renewed by the
129

•HR 361 EH

1 Secretary, following notice and an opportunity for a

2 hearing, for additional periods of not more than 180

3 days each.

4 (2) ADMINISTRATIVE APPEALS.—The person or

5 persons subject to the issuance or renewal of a tem6 porary denial order may appeal the issuance or re7 newal of the temporary denial order, supported by

8 briefs and other material, to an administrative law

9 judge who shall, within 15 working days after the

10 appeal is filed, issue a decision affirming, modifying,

11 or vacating the temporary denial order. The tem12 porary denial order shall be affirmed if it is shown

13 that—

14 (A) there is reasonable cause to believe

15 that the person subject to the order is engaged

16 in or is about to engage in any act or practice

17 which constitutes or would constitute a violation

18 of this title, or any regulation, order, or license

19 issued under this title, or

20 (B) a criminal indictment has been re21 turned against the person subject to the order

22 alleging a violation of this title or any of the

23 statutes listed in section 110(f).

24 The decision of the administrative law judge shall be

25 final unless, within 10 working days after the date
130

•HR 361 EH

1 of the administrative law judge’s decision, an appeal

2 is filed with the Secretary. On appeal, the Secretary

3 shall either affirm, modify, reverse, or vacate the de4 cision of the administrative law judge by written

5 order within 10 working days after receiving the ap6 peal. The written order of the Secretary shall be

7 final and is not subject to judicial review, except as

8 provided in paragraph (3). The materials submitted

9 to the administrative law judge and the Secretary

10 shall constitute the administrative record for pur11 poses of review by the court.

12 (3) COURT APPEALS.—An order of the Sec13 retary affirming, in whole or in part, the issuance or

14 renewal of a temporary denial order may, within 15

15 days after the order is issued, be appealed by a per16 son subject to the order to the United States Court

17 of Appeals for the District of Columbia Circuit,

18 which shall have jurisdiction of the appeal. The

19 court may review only those issues necessary to de20 termine whether the issuance of the temporary de21 nial order was based on reasonable cause to believe

22 that the person subject to the order was engaged in

23 or was about to engage in any act or practice which

24 constitutes or would constitute a violation of this

25 title, or any regulation, order, or license issued
131

•HR 361 EH

1 under this title, or if a criminal indictment has been

2 returned against the person subject to the order al3 leging a violation of this title or any of the statutes

4 listed in section 110(f). The court shall vacate the

5 Secretary’s order if the court finds that the Sec6 retary’s order is arbitrary, capricious, an abuse of

7 discretion, or otherwise not in accordance with law.

8 SEC. 113. ENFORCEMENT.

9 (a) GENERAL AUTHORITY AND DESIGNATION.—

10 (1) POLICY GUIDANCE ON ENFORCEMENT.—

11 The Secretary, in consultation with the Secretary of

12 the Treasury and the heads of other appropriate de13 partments and agencies, shall be responsible for pro14 viding policy guidance on the enforcement of this

15 title.

16 (2) GENERAL AUTHORITIES.—(A) To the extent

17 necessary or appropriate to the enforcement of this

18 title or to the imposition of any penalty, forfeiture,

19 or liability arising under the Export Administration

20 Act of 1979, officers or employees of the Depart21 ment of Commerce designated by the Secretary and

22 officers and employees of the United States Customs

23 Service designated by the Commissioner may exer24 cise the enforcement authorities described in para25 graph (3).
132

•HR 361 EH

1 (B) In carrying out the enforcement authorities

2 described in paragraph (3), the Commissioner of

3 Customs, and employees of the United States Cus4 toms Service designated by the Commissioner, may

5 make investigations within or outside the United

6 States and at those ports of entry or exit from the

7 United States where officers of the United States

8 Customs Service are authorized by law to carry out

9 such enforcement responsibilities. Subject to para10 graph (3), the United States Customs Service is au11 thorized, in the enforcement of this title, to search,

12 detain (after search), and seize commodities or tech13 nology at those ports of entry or exit from the Unit14 ed States where officers of the Customs Service are

15 authorized by law to conduct such searches, deten16 tions, and seizures, and at those places outside the

17 United States where the Customs Service, pursuant

18 to agreements or other arrangements with other

19 countries, is authorized to perform enforcement ac20 tivities.

21 (C) In carrying out the enforcement authorities

22 described in paragraph (3), the Secretary, and offi23 cers and employees of the Department of Commerce

24 designated by the Secretary, may make investiga25 tions within the United States, and shall conduct,
133

•HR 361 EH

1 outside the United States, prelicense and

2 postshipment verifications of items licensed for ex3 port and investigations in the enforcement of section

4 108. The Secretary, and officers and employees of

5 the Department of Commerce designated by the Sec6 retary, are authorized to search, detain (after

7 search), and seize items at those places within the

8 United States other than those ports specified in

9 subparagraph (B). The search, detention (after

10 search), or seizure of items at those ports and places

11 specified in subparagraph (B) may be conducted by

12 officers and employees of the Department of Com13 merce only with the concurrence of the Commis14 sioner of Customs or a person designated by the

15 Commissioner.

16 (D) The Secretary and the Commissioner of

17 Customs may enter into agreements and arrange18 ments for the enforcement of this title, including for19 eign investigations and information exchange.

20 (3) SPECIFIC AUTHORITIES.—(A) Any officer or

21 employee designated under paragraph (2) may do

22 the following in carrying out the enforcement au23 thority under this title:

24 (i) Make investigations of, obtain informa25 tion from, make inspection of any books,
134

•HR 361 EH

1 records, or reports (including any writings re2 quired to be kept by the Secretary), premises,

3 or property of, and take the sworn testimony of,

4 any person.

5 (ii) Administer oaths or affirmations, and

6 by subpoena require any person to appear and

7 testify or to appear and produce books, records,

8 and other writings, or both. In the case of con9 tumacy by, or refusal to obey a subpoena issued

10 to, any such person, a district court of the

11 United States, on request of the Attorney Gen12 eral and after notice to any such person and a

13 hearing, shall have jurisdiction to issue an order

14 requiring such person to appear and give testi15 mony or to appear and produce books, records,

16 and other writings, or both. Any failure to obey

17 such order of the court may be punished by

18 such court as a contempt thereof. The attend19 ance of witnesses and the production of docu20 ments provided for in this clause may be re21 quired from any State, the District of Colum22 bia, or in any territory of the United States at

23 any designated place. Witnesses subpoenaed

24 under this subsection shall be paid the same
135

•HR 361 EH

1 fees and mileage as are paid witnesses in the

2 district courts of the United States.

3 (B)(i) Any officer or employee of the Office of

4 Export Enforcement of the Department of Com5 merce who is designated by the Secretary under

6 paragraph (2), and any officer or employee of the

7 United States Customs Service who is designated by

8 the Commissioner of Customs under paragraph (2),

9 may do the following in carrying out the enforce10 ment authority under this title:

11 (I) Execute any warrant or other process

12 issued by a court or officer of competent juris13 diction with respect to the enforcement of this

14 title.

15 (II) Make arrests without warrant for any

16 violation of this title committed in his or her

17 presence or view, or if the officer or employee

18 has probable cause to believe that the person to

19 be arrested has committed, is committing, or is

20 about to commit such a violation.

21 (III) Carry firearms.

22 (ii) Officers and employees of the Office of Ex23 port Enforcement designated by the Secretary under

24 paragraph (2) shall exercise the authorities set forth
136

•HR 361 EH

1 in clause (i) pursuant to guidelines approved by the

2 Attorney General.

3 (C) Any officer or employee of the United

4 States Customs Service designated by the Commis5 sioner of Customs under paragraph (2) may do the

6 following in carrying out the enforcement authority

7 under this title:

8 (i) Stop, search, and examine a vehicle,

9 vessel, aircraft, or person on which or whom the

10 officer or employee has reasonable cause to sus11 pect there is any item that has been, is being,

12 or is about to be exported from or transited

13 through the United States in violation of this

14 title.

15 (ii) Detain and search any package or con16 tainer in which the officer or employee has rea17 sonable cause to suspect there is any item that

18 has been, is being, or is about to be exported

19 from or transited through the United States in

20 violation of this title.

21 (iii) Detain (after search) or seize any

22 item, for purposes of securing for trial or for23 feiture to the United States, on or about such

24 vehicle, vessel, aircraft, or person or in such

25 package or container, if the officer or employee
137

•HR 361 EH

1 has probable cause to believe the item has been,

2 is being, or is about to be exported from or

3 transited through the United States in violation

4 of this title.

5 (4) OTHER AUTHORITIES NOT AFFECTED.—The

6 authorities conferred by this section are in addition

7 to any authorities conferred under other laws.

8 (b) FORFEITURE.—Any commodities or tangible

9 items lawfully seized under subsection (a) by designated

10 officers or employees shall be subject to forfeiture to the

11 United States. Those provisions of law relating to—

12 (1) the seizure, summary and judicial forfeiture,

13 and condemnation of property for violations of the

14 customs laws,

15 (2) the disposition of such property or the pro16 ceeds from the sale thereof,

17 (3) the remission or mitigation of such forfeit18 ures, and

19 (4) the compromise of claims,

20 shall apply to seizures and forfeitures incurred, or alleged

21 to have been incurred, under the provisions of this sub22 section, insofar as applicable and not inconsistent with

23 this title; except that such duties as are imposed upon the

24 customs officer or any other person with respect to the

25 seizure and forfeiture of property under the customs laws
138

•HR 361 EH

1 may be performed with respect to seizures and forfeitures

2 of property under this subsection by the Secretary or such

3 officers and employees of the Department of Commerce

4 as may be authorized or designated for that purpose by

5 the Secretary, or, upon the request of the Secretary, by

6 any other agency that has authority to manage and dis7 pose of seized property.

8 (c) REFERRAL OF CASES.—All cases involving viola9 tions of this title shall be referred to the Secretary for

10 purposes of determining civil penalties and administrative

11 sanctions under section 110(c), or to the Attorney General

12 for criminal action in accordance with this title or to both

13 the Secretary and the Attorney General.

14 (d) UNDERCOVER INVESTIGATION OPERATIONS.—

15 (1) USE OF FUNDS.—With respect to any un16 dercover investigative operation conducted by the Of17 fice of Export Enforcement of the Department of

18 Commerce (hereafter in this subsection referred to

19 as ‘‘OEE’’) necessary for the detection and prosecu20 tion of violations of this title—

21 (A) funds made available for export en22 forcement under this title may be used to pur23 chase property, buildings, and other facilities,

24 and to lease space within the United States,

25 without regard to sections 1341 and 3324 of
139

•HR 361 EH

1 title 31, United States Code, the third undesig2 nated paragraph under the heading of ‘‘MIS3 CELLANEOUS’’ of the Act of March 3, 1877, (40

4 U.S.C. 34), sections 3732(a) and 3741 of the

5 Revised Statutes of the United States (41

6 U.S.C. 11(a) and 22), and subsections (a) and

7 (c) of section 304, and section 305 of the Fed8 eral Property and Administrative Services Act

9 of 1949 (41 U.S.C. 254(a) and (c) and 255),

10 (B) funds made available for export en11 forcement under this title may be used to estab12 lish or to acquire proprietary corporations or

13 business entities as part of an undercover oper14 ation, and to operate such corporations or busi15 ness entities on a commercial basis, without re16 gard to section 9102 of title 31, United States

17 Code,

18 (C) funds made available for export en19 forcement under this title and the proceeds

20 from undercover operations may be deposited in

21 banks or other financial institutions without re22 gard to the provisions of section 648 of title 18,

23 United States Code, and section 3302 of title

24 31, United States Code, and
140

•HR 361 EH

1 (D) the proceeds from undercover oper2 ations may be used to offset necessary and rea3 sonable expenses incurred in such operations

4 without regard to the provisions of section 3302

5 of title 31, United States Code,

6 if the Director of OEE (or an officer or employee

7 designated by the Director) certifies, in writing, that

8 the action authorized by subparagraph (A), (B), (C),

9 or (D) for which the funds would be used is nec10 essary for the conduct of the undercover operation.

11 (2) DISPOSITION OF BUSINESS ENTITIES.—If a

12 corporation or business entity established or ac13 quired as part of an undercover operation with a net

14 value of more than $50,000 is to be liquidated, sold,

15 or otherwise disposed of, the Director of OEE shall

16 report the circumstances to the Secretary and the

17 Comptroller General, as much in advance of such

18 disposition as the Director of OEE or his or her des19 ignee determines is practicable. The proceeds of the

20 liquidation, sale, or other disposition, after obliga21 tions incurred by the corporation or business enter22 prise are met, shall be deposited in the Treasury of

23 the United States as miscellaneous receipts.

24 (3) DEPOSIT OF PROCEEDS.—As soon as the

25 proceeds from an OEE undercover investigative op-
141

•HR 361 EH

1 eration with respect to which an action is authorized

2 and carried out under this subsection are no longer

3 necessary for the conduct of such operation, such

4 proceeds or the balance of such proceeds remaining

5 at the time shall be deposited into the Treasury of

6 the United States as miscellaneous receipts.

7 (4) AUDIT AND REPORT.—(A) The Director of

8 OEE shall conduct a detailed financial audit of each

9 OEE undercover investigative operation which is

10 closed and shall submit the results of the audit in

11 writing to the Secretary. Not later than 180 days

12 after an undercover operation is closed, the Sec13 retary shall submit to the Congress a report on the

14 results of the audit.

15 (B) The Secretary shall submit annually to the

16 Congress a report, which may be included in the an17 nual report under section 115, specifying the follow18 ing information:

19 (i) The number of undercover investigative

20 operations pending as of the end of the period

21 for which such report is submitted.

22 (ii) The number of undercover investigative

23 operations commenced in the 1-year period pre24 ceding the period for which such report is sub25 mitted.
142

•HR 361 EH

1 (iii) The number of undercover investiga2 tive operations closed in the 1-year period pre3 ceding the period for which such report is sub4 mitted and, with respect to each such closed un5 dercover operation, the results obtained and any

6 civil claims made with respect thereto.

7 (5) DEFINITIONS.—For purposes of paragraph

8 (4)—

9 (A) the term ‘‘closed’’, with respect to an

10 undercover investigative operation, refers to the

11 earliest point in time at which all criminal pro12 ceedings (other than appeals) pursuant to the

13 investigative operation are concluded, or covert

14 activities pursuant to such operation are con15 cluded, whichever occurs later;

16 (B) the terms ‘‘undercover investigative

17 operation’’ and ‘‘undercover operation’’ mean

18 any undercover investigative operation con19 ducted by OEE—

20 (i) in which the gross receipts (exclud21 ing interest earned) exceed $25,000, or ex22 penditures (other than expenditures for

23 salaries of employees) exceed $75,000, and

24 (ii) which is exempt from section 3302

25 or 9102 of title 31, United States Code,
143

•HR 361 EH

1 except that clauses (i) and (ii) shall not apply

2 with respect to the report to the Congress re3 quired by subparagraph (B) of paragraph (4);

4 and

5 (C) the term ‘‘employees’’ means employ6 ees, as defined in section 2105 of title 5, United

7 States Code, of the Department of Commerce.

8 (e) REFERENCE TO ENFORCEMENT.—For purposes

9 of this section, a reference to the enforcement of this title

10 or to a violation of this title includes a reference to the

11 enforcement or a violation of any regulation, license, or

12 order issued under this title.

13 SEC. 114. EXPORT CONTROL AUTHORITIES AND PROCE14 DURES.

15 (a) POLICY GUIDANCE.—

16 (1) IN GENERAL.—As directed by the Presi17 dent, annual policy guidance shall be issued to pro18 vide detailed implementing guidance to export licens19 ing officials in all appropriate departments and

20 agencies.

21 (2) ELEMENTS OF ANNUAL POLICY REVIEW.—

22 In order to develop such annual policy guidance, ex23 port controls and other regulations to implement

24 this title shall be reviewed annually. This annual pol25 icy review shall include an evaluation of the benefits
144

•HR 361 EH

1 and costs of the imposition, extension, or removal of

2 controls under this title. This review shall include—

3 (A) an assessment by the Secretary of the

4 economic consequences of the imposition, exten5 sion, or removal of controls during the preced6 ing 12 months, including the impact on United

7 States exports or jobs;

8 (B) an assessment by the Secretary of

9 State of the objectives of the controls in effect

10 during the preceding 12 months, and the extent

11 to which the controls have served those objec12 tives; and

13 (C) an assessment by the Secretary of De14 fense of the impact that the imposition, exten15 sion, or removal of controls during the preced16 ing 12 months has had on United States na17 tional security.

18 (b) EXPORT CONTROL AUTHORITY AND FUNC19 TIONS.—

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

21 the President or a department or agency outside the

22 Department of Commerce, all power, authority, and

23 discretion conferred by this title shall be exercised by

24 the Secretary.
145

•HR 361 EH

1 (2) DELEGATION OF FUNCTIONS OF THE SEC2 RETARY.—The Secretary may delegate any function

3 under this title to the Under Secretary of Commerce

4 for Export Administration appointed under sub5 section (d) or to any other officer of the Department

6 of Commerce.

7 (c) EXPORT CONTROL POLICY COMMITTEE.—

8 (1) ESTABLISHMENT.—There is established an

9 Export Control Policy Committee (hereafter in this

10 subsection referred to as the ‘‘Committee’’).

11 (2) FUNCTIONS.—The Committee shall—

12 (A) provide policy guidance and advice to

13 the President on export control issues under

14 this title;

15 (B) review policy recommendations pro16 posed by the Secretary and other members of

17 the Committee; and

18 (C) receive policy recommendations from

19 other departments and agencies and resolve pol20 icy disputes among departments and agencies

21 under this title.

22 (3) MEMBERSHIP.—The Committee shall in23 clude the Secretary, the Secretary of Defense, the

24 Secretary of Energy, the heads of other relevant de-
146

•HR 361 EH

1 partments, and appropriate officials of the Executive

2 Office of the President.

3 (4) CHAIR.—The Committee shall be chaired by

4 the President or his designee.

5 (5) DELEGATION; OTHER REPRESENTATIVES.—

6 A member of the Committee under paragraph (3)

7 may designate the deputy head of his or her depart8 ment or agency to serve in his or her absence as a

9 member of the Committee, but this authority may

10 not be delegated to any other individual. The chair

11 may also invite the temporary participation in the

12 Committee’s meetings of representatives from other

13 offices and agencies as appropriate to the issues

14 under consideration.

15 (6) MEETINGS.—The chair of the Committee

16 may call a meeting of the Committee. Meetings shall

17 not be subject to section 552b of title 5, United

18 States Code.

19 (d) UNDER SECRETARY OF COMMERCE; ASSISTANT

20 SECRETARIES.—

21 (1) APPOINTMENT.—The President shall ap22 point, by and with the advice and consent of the

23 Senate, an Under Secretary of Commerce for Export

24 Administration who shall carry out all functions of

25 the Secretary under this title and other provisions of
147

•HR 361 EH

1 law relating to national security, as the Secretary

2 may delegate. The President shall appoint, by and

3 with the advice and consent of the Senate, two As4 sistant Secretaries of Commerce to assist the Under

5 Secretary in carrying out such functions.

6 (2) TRANSITION PROVISIONS.—Those individ7 uals serving in the positions of Under Secretary of

8 Commerce for Export Administration and Assistant

9 Secretaries of Commerce under section 15(a) of the

10 Export Administration Act of 1979, on the day be11 fore the date of the enactment of this Act, shall be

12 deemed to have been appointed under paragraph (1),

13 by and with the advice and consent of the Senate,

14 as of such date of enactment.

15 (e) ISSUANCE OF REGULATIONS.—The President and

16 the Secretary may issue such regulations as are necessary

17 to carry out this title. Any such regulations the purpose

18 of which is to carry out section 105, 106, or 111(a) may

19 be issued only after the regulations are submitted for re20 view to such departments or agencies as the President con21 siders appropriate. The Secretary shall consult with the

22 appropriate export advisory committee appointed under

23 section 104(f) in formulating regulations under this title.

24 The second sentence of this subsection does not require
148

•HR 361 EH

1 the concurrence or approval of any official, department,

2 or agency to which such regulations are submitted.

3 (f) AMENDMENTS TO REGULATIONS.—If the Sec4 retary proposes to amend regulations issued under this

5 title, the Secretary shall report to the Committee on Bank6 ing, Housing, and Urban Affairs of the Senate and the

7 Speaker of the House of Representatives on the intent and

8 rationale of such amendments. Such report shall evaluate

9 the cost and burden to the United States exporters of the

10 proposed amendments in relation to any enhancement of

11 licensing objectives. The Secretary shall consult with the

12 appropriate export advisory committees appointed under

13 section 104(f) in amending regulations issued under this

14 title.

15 (g) CONFIDENTIALITY OF INFORMATION.—

16 (1) EXEMPTIONS FROM DISCLOSURE.—

17 (A) INFORMATION OBTAINED ON OR BE18 FORE JUNE 30, 1980.—Except as otherwise pro19 vided by the third sentence of section

20 108(b)(2), information obtained under the Ex21 port Administration Act of 1979 and its prede22 cessor statutes on or before June 30, 1980,

23 which is deemed confidential, including Ship24 per’s Export Declarations, or with reference to

25 which a request for confidential treatment is
149

•HR 361 EH

1 made by the person furnishing such informa2 tion, shall not be subject to disclosure under

3 section 552 of title 5, United States Code, and

4 such information shall not be published or dis5 closed unless the Secretary determines that the

6 withholding thereof is contrary to the national

7 interest.

8 (B) INFORMATION OBTAINED AFTER JUNE

9 30, 1980.—Except as otherwise provided by the

10 third sentence of section 108(b)(2), information

11 obtained under this title or under the Export

12 Administration Act of 1979 after June 30,

13 1980, may be withheld from disclosure only to

14 the extent permitted by statute, except that in15 formation submitted, obtained, or considered in

16 connection with an application for an export li17 cense or other export authorization under the

18 Export Administration Act of 1979 or this title,

19 including—

20 (i) the export license or other export

21 authorization itself,

22 (ii) classification requests described in

23 section 109(h)(1),
150

•HR 361 EH

1 (iii) information obtained during the

2 course of an assessment under subsection

3 (k),

4 (iv) information or evidence obtained

5 in the course of any investigation, and

6 (v) information obtained or furnished

7 under this title in connection with inter8 national agreements, treaties, or obliga9 tions,

10 shall be withheld from public disclosure and

11 shall not be subject to disclosure under section

12 552 of title 5, United States Code, unless the

13 release of such information is determined by the

14 Secretary to be in the national interest.

15 (2) INFORMATION TO CONGRESS AND GAO.—

16 (A) IN GENERAL.—Nothing in this title

17 shall be construed as authorizing the withhold18 ing of information from the Congress or from

19 the General Accounting Office.

20 (B) AVAILABILITY TO THE CONGRESS.—

21 (i) IN GENERAL.—All information ob22 tained at any time under this title or pre23 vious Acts regarding the control of exports,

24 including any report or license application

25 required under this title, shall be made
151

•HR 361 EH

1 available to any committee or subcommit2 tee of Congress of appropriate jurisdiction

3 upon the request of the chairman or rank4 ing minority member of such committee or

5 subcommittee.

6 (ii) PROHIBITION ON FURTHER DIS7 CLOSURE.—No committee, subcommittee,

8 or Member of Congress shall disclose any

9 information obtained under this title or

10 previous Acts regarding the control of ex11 ports which is submitted on a confidential

12 basis to the Congress under clause (i) un13 less the full committee to which the infor14 mation is made available determines that

15 the withholding of the information is con16 trary to the national interest.

17 (C) AVAILABILITY TO THE GAO.—

18 (i) IN GENERAL.—Notwithstanding

19 paragraph (1), information referred to in

20 subparagraph (B) shall, consistent with

21 the protection of intelligence, counterintel22 ligence, and law enforcement sources,

23 methods, and activities, as determined by

24 the agency that originally obtained the in25 formation, and consistent with the provi-
152

•HR 361 EH

1 sions of section 716 of title 31, United

2 States Code, be made available only by the

3 agency, upon request, to the Comptroller

4 General of the United States or to any of5 ficer or employee of the General Account6 ing Office authorized by the Comptroller

7 General to have access to such informa8 tion.

9 (ii) PROHIBITION ON FURTHER DIS10 CLOSURES.—No officer or employee of the

11 General Accounting Office shall disclose,

12 except to the Congress in accordance with

13 this paragraph, any such information

14 which is submitted on a confidential basis

15 and from which any individual can be iden16 tified.

17 (3) INFORMATION EXCHANGE.—Notwithstand18 ing paragraph (1), the Secretary and the Commis19 sioner of Customs shall exchange licensing and en20 forcement information with each other which is nec21 essary to facilitate enforcement efforts and effective

22 license decisions.

23 (4) PENALTIES FOR DISCLOSURE OF CON24 FIDENTIAL INFORMATION.—Any officer or employee

25 of the United States, or any department or agency
153

•HR 361 EH

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

2 known in any manner or to any extent not author3 ized by law any confidential information that—

4 (A) he or she obtains in the course of his

5 or her employment or official duties or by rea6 son of any examination or investigation made

7 by, or report or record made to or filed with,

8 such department or agency, or officer or em9 ployee thereof, and

10 (B) is exempt from disclosure under this

11 subsection,

12 shall be fined not more than $10,000, or imprisoned

13 not more than one year, or both, shall be removed

14 from office or employment, and shall be subject to

15 a civil penalty of not more than $1,000 imposed by

16 the Secretary under section 110(c).

17 (h) AUTHORITY FOR SEMINAR AND PUBLICATIONS

18 FUND.—The Secretary is authorized to cooperate with

19 public agencies, other governments, international organi20 zations, private individuals, private associations, and other

21 groups in connection with seminars, publications, and re22 lated activities to carry out export activities, including

23 educating the public or government officials on the appli24 cation of this title and the regulations issued under this

25 title. The Secretary is further authorized to accept con-
154

•HR 361 EH

1 tributions of funds, property, or services in connection

2 with such activities to recover the cost of such programs

3 and activities. Contributions may include payments for

4 materials or services provided as part of such activities.

5 The contributions collected may be retained for use in cov6 ering the costs of such activities, and for providing infor7 mation to the public with respect to this title and other

8 export control programs of the United States and other

9 governments.

10 (i) SUPPORT OF OTHER COUNTRIES’ EXPORT CON11 TROL PROGRAM.—The Secretary is authorized to partici12 pate in and provide training to officials of other countries

13 on the principles and procedures for the implementation

14 of effective export controls and may participate in any

15 such training provided by other departments and agencies

16 of the United States.

17 (j) INCORPORATED COMMODITIES AND TECH18 NOLOGY.—

19 (1) COMMODITIES CONTAINING CONTROLLED

20 PARTS AND COMPONENTS.—Controls may not be im21 posed under this title or any other provision of law

22 for a commodity solely because the commodity con23 tains parts or components subject to export controls

24 under this title if such parts or components—
155

•HR 361 EH

1 (A) are essential to the functioning of the

2 commodity,

3 (B) are customarily included in sales of the

4 commodity in countries other than controlled

5 countries, and

6 (C) comprise 25 percent or less of the total

7 value of the commodity,

8 unless the commodity itself, if exported, would by

9 virtue of the functional characteristics of the com10 modity as a whole make a significant contribution to

11 the military or proliferation potential of a controlled

12 country or end user which would prove detrimental

13 to the national security of the United States.

14 (2) REEXPORTS OF FOREIGN-MADE ITEMS IN15 CORPORATING U.S. ITEMS.—

16 (A) COMMODITIES.—(i) No authority or

17 permission may be required under section 105

18 or section 106 to reexport to a country other

19 than a terrorist country or an embargoed coun20 try a commodity that is produced in a country

21 other than the United States and incorporates

22 commodities that are subject to the jurisdiction

23 of the United States, if the value of the con24 trolled United States content of the commodity
156

•HR 361 EH

1 produced in such other country is 25 percent or

2 less of the total value of the commodity.

3 (ii) No authority or permission may be re4 quired under section 105 or section 106 to reex5 port to a terrorist country or to an embargoed

6 country a commodity that is produced in a

7 country other than the United States and incor8 porates commodities that are subject to the ju9 risdiction of the United States, if the value of

10 the controlled United States content of the

11 commodity produced in such other country is

12 10 percent or less of the total value of the com13 modity.

14 (B) TECHNOLOGY.—(i) No authority or

15 permission may be required under section 105

16 or section 106 to reexport to a country other

17 than a terrorist country or an embargoed coun18 try technology that is produced in a country

19 other than the United States and is commingled

20 with or drawn from technology that is produced

21 in the United States, if the value of the con22 trolled United States content of the technology

23 produced in such other country is 25 percent or

24 less of the total value of the technology.
157

•HR 361 EH

1 (ii) No authority or permission may be re2 quired under section 105 or section 106 to reex3 port to a terrorist country or an embargoed

4 country technology that is produced in a coun5 try other than the United States and is com6 mingled with or drawn from technology that is

7 produced in the United States, if the value of

8 the controlled United States content of the

9 technology produced in such other country is 10

10 percent or less of the total value of the tech11 nology.

12 (C) DEFINITIONS.—For purposes of this

13 paragraph—

14 (i) the ‘‘controlled United States con15 tent’’ of a commodity or technology means

16 those commodities or technology that—

17 (I) are subject to the jurisdiction

18 of the United States;

19 (II) are incorporated into the

20 commodity or technology; and

21 (III) would, at the time of the re22 export, require a license under section

23 105 or 106 if exported from the Unit24 ed States to a country to which the
158

•HR 361 EH

1 commodity or technology is to be reex2 ported;

3 (ii) an ‘‘embargoed country’’ is a

4 country against which an embargo is in ef5 fect under the Trading with the Enemy

6 Act, the International Emergency Eco7 nomic Powers Act, or other provision of

8 law; and

9 (iii) a ‘‘terrorist country’’ is a country

10 with respect to which a determination is in

11 effect that was made under section

12 106(i)(1)(A) of this Act, or section

13 6(j)(1)(A) of the Export Administration

14 Act of 1979, that the government of such

15 country has repeatedly provided support

16 for acts of international terrorism.

17 (3) TREATMENT OF TECHNOLOGY AND SOURCE

18 CODE.—For purposes of this subsection, technology

19 and source code used to design or produce foreign20 made commodities are not deemed to be incor21 porated into such foreign-made commodities.

22 (4) REPORTING REQUIREMENTS.—Notwith23 standing paragraphs (1) through (3), the Secretary

24 may require persons to report to the Department of

25 Commerce their proposed calculations and underly-
159

•HR 361 EH

1 ing data sufficient for the Department of Commerce

2 to evaluate the adequacy of those calculations and

3 data related to commodities and technology before a

4 reexporter may rely upon the exclusions from con5 trols provided in this subsection.

6 (5) EXCEPTIONS.—Paragraphs (1) and (2) do

7 not require any changes to regulations in effect on

8 the effective date of this title and, notwithstanding

9 paragraphs (1) and (2), controls may be imposed on

10 commodities or technology transferred, after March

11 1, 1996, from export control under the Arms Export

12 Control Act to control under this title if those com13 modities or technology are designated by the Presi14 dent for exemption from paragraph (1) or (2), as

15 the case may be.

16 (k) UNFAIR IMPACT ON UNITED STATES EX17 PORTER.—

18 (1) POLICY.—It is the policy of the United

19 States that no United States exporter should be af20 fected unfairly by export control policies or practices

21 unless relief from such controls would create a sig22 nificant risk to the foreign policy, nonproliferation,

23 or national security interests of the United States.

24 (2) RELIEF FROM EXPORT CONTROLS.—(A) A

25 person may petition the Secretary for relief from
160

•HR 361 EH

1 current export control requirements (other than con2 trol requirements specifically imposed by this title or

3 other provisions of law) on the basis of foreign avail4 ability. A person may also petition the Secretary for

5 approval of an export license application on other

6 grounds which the Secretary, with the concurrence

7 of the Secretary of Defense, shall establish by regu8 lation. The Secretary shall, upon receipt of such pe9 titions, and may, on his or her initiative, conduct as10 sessments for providing relief based upon these

11 grounds.

12 (B) For purposes of this subsection, foreign

13 availability exists when the controlled item is avail14 able in fact, under terms and conditions established

15 by the Secretary with the concurrence of the sec16 retary of Defense, to controlled countries or end

17 users from sources outside the United States so that

18 the requirement for a license is or would be ineffec19 tive in achieving the purpose of the control.

20 (3) PROVISIONS FOR RELIEF.—The Secretary,

21 in consultation with appropriate departments and

22 agencies, shall make determinations of facts under

23 paragraph (2), addressing, in the case of a petition

24 filed under paragraph (2), each ground for relief as25 serted in the petition, and, subject to paragraph (4),
161

•HR 361 EH

1 shall provide at least one of the following forms of

2 relief to persons that meet the criteria in paragraph

3 (2):

4 (A) Change the control status of, or licens5 ing requirements on, all or some of the items in

6 question so as to eliminate the unfair impact.

7 (B) Selectively approve the sale of con8 trolled items so as to eliminate the unfair im9 pact.

10 (C) Seek multilateral support to eliminate

11 the source of unfair impact. If relief under this

12 subparagraph is chosen and if such efforts fail

13 to achieve multilateral support, then the Sec14 retary, not later than 330 days from the date

15 of the Secretary’s initiation of the assessment

16 under paragraph (2), shall provide other relief

17 pursuant to subparagraph (A) or (B) or con18 clude pursuant to paragraph (4) that the grant19 ing of such relief would create a significant risk

20 to United States nonproliferation, foreign pol21 icy, or national security interests.

22 A determination that a petitioner qualifies for relief

23 under paragraph (2) shall not compel the United

24 States to remove controls from an item that remains

25 subject to control by a multilateral regime.
162

•HR 361 EH

1 (4) EXCEPTIONS FROM RELIEF.—The Secretary

2 shall provide relief under paragraph (3) to a peti3 tioner who qualifies for relief under paragraph (2)

4 unless the Secretary concludes that the granting of

5 such relief would create a significant risk to United

6 States nonproliferation, foreign policy, or national

7 security interests. In the event the Secretary deter8 mines to grant such relief, he or she may do so un9 less the President determines that such relief would

10 create a significant risk to the foreign policy, non11 proliferation, or national security interests of the

12 United States.

13 (5) PROCEDURES.—

14 (A) PUBLICATION.—In any case in which

15 the President or the Secretary determines that

16 relief under paragraph (3) will not be granted,

17 notwithstanding the existence of facts that con18 stitute a basis for granting relief, the Secretary

19 shall publish that determination, together with

20 a concise statement of its basis and the esti21 mated economic impact of the decision.

22 (B) NOTICE OF ASSESSMENTS.—Whenever

23 the Secretary undertakes an assessment under

24 paragraph (2), the Secretary shall publish in
163

•HR 361 EH

1 the Federal Register notice of the initiation of

2 such assessment.

3 (C) PROCEDURES FOR MAKING DETER4 MINATIONS.—During the conduct of an assess5 ment under this subsection, the Secretary shall

6 consult with other appropriate departments and

7 agencies concerning the assessment. The Sec8 retary shall make a determination as to whether

9 relief is required under paragraph (2) within

10 120 days after the date of the Secretary’s re11 ceipt of the petition requesting relief or the date

12 of the Secretary’s initiation of the assessment

13 (as the case may be) and shall so notify the ap14 plicant. If the Secretary has determined that

15 relief is appropriate, the Secretary shall, upon

16 making such a determination, submit the deter17 mination for review to the Department of De18 fense and other appropriate departments and

19 agencies for consultations regarding the find20 ings and the relief selected. If the Secretary of

21 Defense or other department or agency head

22 disagrees with the Secretary’s determination, he

23 or she may appeal the determination to the

24 President in writing, but only on the basis of

25 the criteria set forth in paragraph (4). The
164

•HR 361 EH

1 President shall resolve any such disagreement

2 so that, in all cases, not later than 150 days

3 after the date of the Secretary’s receipt of the

4 petition requesting relief or the date of the Sec5 retary’s initiation of the assessment (as the

6 case may be), the Secretary responds in writing

7 to the petitioner and submits for publication in

8 the Federal Register, that—

9 (i) unfair impact exists and—

10 (I) the requirement of a license

11 has been removed;

12 (II) the control status of all or

13 some of the items in question has

14 been changed so as to eliminate the

15 unfair impact;

16 (III) the sale of controlled items

17 has been approved so as to eliminate

18 the unfair impact;

19 (IV) export controls under this

20 title are to be maintained notwith21 standing the finding under paragraph

22 (2); or

23 (V) the United States rec24 ommendation to remove the license re25 quirement or change the control sta-
165

•HR 361 EH

1 tus will be submitted to a relevant

2 multilateral regime for consideration

3 for a period of not more than 180

4 days beginning on the date of the

5 publication; or

6 (ii) a right to relief under paragraph

7 (2) does not exist.

8 The reasons for maintaining export controls

9 under clause (i)(IV) shall be included in the

10 submission to the petitioner and the publica11 tion. In any case in which the submission for

12 publication is not made within the 150-day pe13 riod required by this subparagraph, the Sec14 retary may not thereafter require a license for

15 the export of items that are the subject of the

16 allegation under paragraph (2).

17 (D) NEGOTIATIONS TO ELIMINATE UNFAIR

18 IMPACT.—(i) In any case in which export con19 trols are maintained under this section pursu20 ant to paragraph (4) despite a determination of

21 unfair impact, the Secretary of State shall ac22 tively pursue negotiations with the governments

23 of the appropriate foreign countries for the pur24 pose of eliminating the unfair impact. No later

25 than the commencement of such negotiations,
166

•HR 361 EH

1 the Secretary of State shall notify the Congress

2 in writing that the Secretary of State has begun

3 such negotiations and why it is important that

4 export controls on the items involved be main5 tained to avoid a significant risk to the foreign

6 policy, nonproliferation, or national security in7 terests of the United States.

8 (ii) Whenever the Secretary of State has

9 reason to believe that items subject to export

10 controls by the United States may become

11 available in fact from other countries to con12 trolled countries and that such availability can

13 be prevented or eliminated by means of negotia14 tions with such other countries, the Secretary of

15 State shall promptly initiate negotiations with

16 the governments of such other countries to pre17 vent such foreign availability.

18 (6) SHARING OF INFORMATION.—Each depart19 ment or agency of the United States, including any

20 intelligence agency, and all contractors with any

21 such department or agency, shall, upon the request

22 of the Secretary and consistent with the protection

23 of intelligence sources and methods, furnish informa24 tion to the Department of Commerce concerning for25 eign availability of items subject to export controls
167

•HR 361 EH

1 under this title. Consistent with the protection of in2 telligence sources and methods and classification re3 strictions, each such department or agency shall

4 allow the Department of Commerce access to such

5 information from a laboratory or other facility with6 in such department or agency.

7 (7) CONGRESSIONAL NOTIFICATION AND RE8 PORTING REQUIREMENTS.—The Secretary shall each

9 year notify the Congress of all petitions for relief

10 under this subsection and the status of all such peti11 tions.

12 (l) EXCEPTIONS FOR MEDICAL AND HUMANITARIAN

13 PURPOSES.—This title does not authorize controls on—

14 (1) medicine or medical supplies; or

15 (2) donations of items that are intended to

16 meet basic human needs, including food, educational

17 materials, seeds, hand tools, water resources equip18 ment, clothing and shelter materials, and basic

19 household supplies.

20 (m) SANCTITY OF EXISTING CONTRACTS AND LI21 CENSES.—

22 (1) IN GENERAL.—In the case of a control im23 posed under section 106 on the export of any items,

24 the President may not prohibit the export of those

25 items—
168

•HR 361 EH

1 (A) in performance of a contract, agree2 ment, or other contractual commitment entered

3 into before the date on which the control is ini4 tially imposed, or the date on which the Presi5 dent reports to the Congress the President’s in6 tention to impose the control, whichever date

7 occurs first, or

8 (B) under a license or other authorization

9 issued under this title before the date on which

10 the control is initially imposed, or the date on

11 which the President reports to the Congress the

12 President’s intention to impose the control,

13 whichever date occurs first.

14 (2) EXCEPTION.—The prohibition in paragraph

15 (1) shall not apply if the President determines and

16 certifies to the Congress that—

17 (A) a breach of the peace poses a serious

18 and direct threat to the strategic interest of the

19 United States;

20 (B) the prohibition of exports under each

21 such contract, agreement, commitment, license,

22 or authorization will be directly instrumental in

23 remedying the situation posing the direct

24 threat; and
169

•HR 361 EH

1 (C) the export controls will continue only

2 so long as the direct threat persists.

3 The authority of the President to make determina4 tions under this paragraph may not be delegated.

5 (n) PUBLICATION OF DECISIONS AND ACTIONS OF

6 THE SECRETARY.—

7 (1) IN GENERAL.—The Secretary shall publish

8 in the Federal Register, to the greatest extent prac9 ticable, actions, procedures, and decisions of the Sec10 retary under this title, taking into account restric11 tions on disclosure of classified or confidential infor12 mation. The Secretary shall publish in the Federal

13 Register calculations by the Secretary of commonly14 used control index parameters for commodities and

15 technologies, including all officially accepted compos16 ite theoretical performance calculations for comput17 ers and microprocessors, except in a case in which

18 a private party requested the calculation and asked

19 that it not be published.

20 (2) NOTICE OF REVISIONS.—Whenever the Sec21 retary makes any revision in the control index with

22 respect to any commodity or technology, or with re23 spect to any country or destination affected by con24 trols imposed under section 105 or section 106, the

25 Secretary shall publish in the Federal Register a no-
170

•HR 361 EH

1 tice of such revision and shall specify in such notice

2 under which authority the revision is being made.

3 (o) NOTIFICATION OF THE PUBLIC; CONSULTATION

4 WITH INDUSTRY; RECORDKEEPING.—

5 (1) NOTIFICATION OF THE PUBLIC.—The Sec6 retary shall keep the public fully apprised of changes

7 in export control policy and procedures instituted

8 under this title with a view to encouraging trade.

9 (2) CONSULTATION WITH INDUSTRY.—The Sec10 retary shall meet regularly with export advisory com11 mittees appointed under section 104(f) in order to

12 obtain their views on United States export control

13 policy and the foreign availability of commodities

14 and technology.

15 (p) EXPORT CONTROL DUTIES.—

16 (1) ASSIGNMENT.—The Secretary shall ensure

17 that at least one full-time representative of the De18 partment of Commerce stationed in the People’s Re19 public of China has duties related to the implemen20 tation of export controls under this title. These du21 ties shall include giving priority to conducting

22 postshipment verifications and prelicense checks,

23 and to using other means to ensure that United

24 States exports from the United States of dual use
171

•HR 361 EH

1 items are not diverted to unauthorized end uses or

2 end users.

3 (2) OTHER RESOURCES.—The Secretary shall

4 ensure that appropriate resources are made available

5 and, if necessary, new procedures established to as6 sist the representative or representatives of the De7 partment of Commerce referred to in paragraph (1)

8 in carrying out their duties and to ensure that sen9 sitive items are not diverted to inappropriate end

10 uses or end users in the People’s Republic of China.

11 Efforts to carry out this paragraph shall include ap12 propriate coordination with United States officials in

13 Hong Kong to ensure that sensitive items exported

14 to Hong Kong are protected from diversion.

15 (3) AUTHORIZATION OF APPROPRIATIONS.—

16 There are authorized to be appropriated such sums

17 as may be necessary to carry out paragraph (1).

18 (q) AUTHORIZATION FOR TECHNICAL DATA.—A li19 cense authorizing the export of any commodities or tech20 nology under this title shall also authorize the export of

21 operation technical data related to such commodities or

22 technology, if the technical level of the data does not ex23 ceed the minimum necessary to install, repair, maintain,

24 inspect, operate, or use the commodities or technology.
172

•HR 361 EH

1 (r) LICENSES FOR SPARE PARTS NOT REQUIRED.—

2 A license shall not be required under this title for replace3 ment parts which are exported to replace on a one-for4 one basis parts that were in a commodity that was lawfully

5 exported from the United States, unless the President de6 termines that such a license should be required for such

7 parts.

8 SEC. 115. ANNUAL REPORT.

9 (a) CONTENTS.—Not later than March 1 of each

10 year, the Secretary shall submit to the Congress a report

11 on the administration of this title during the preceding

12 calendar year. All agencies shall cooperate fully with the

13 Secretary in providing information for such report. Such

14 report shall include detailed information on the following:

15 (1) The implementation of the policies set forth

16 in section 103, including delegations of authority by

17 the President under section 104(d), consultations

18 with the export advisory committees established

19 under section 104(f), and any changes in the exer20 cise of the authorities contained in sections 105(a),

21 106(a), 107(a), and 108(a).

22 (2) With respect to multilateral export controls

23 imposed or maintained under section 105, the fol24 lowing:
173

•HR 361 EH

1 (A) Adjustments to multilateral export

2 controls.

3 (B) The exercise of the Secretary’s author4 ity under section 105(e).

5 (3) Determinations made under section 114(k),

6 the criteria used to make such determinations, the

7 removal of any export controls under such section,

8 and any evidence demonstrating a need to maintain

9 export controls notwithstanding determinations

10 made under paragraph (2) of section 114(k).

11 (4) Short supply controls and monitoring under

12 section 107.

13 (5) Organizational and procedural changes un14 dertaken in furtherance of the policies set forth in

15 this title, including changes to increase the efficiency

16 of the export licensing process and to fulfill the re17 quirements of section 109, including an accounting

18 of appeals received, and actions taken pursuant

19 thereto, under section 109(g).

20 (6) Violations under section 110 and enforce21 ment activities under section 113.

22 (7) The issuance of regulations under this title.

23 (8) The results, in as much detail as may be in24 cluded consistent with the strategic and political in25 terests of the United States and the need to main-
174

•HR 361 EH

1 tain the confidentiality of proprietary information, of

2 the reviews of the multilateral control list, and any

3 revisions to the list resulting from such reviews, re4 quired by section 105.

5 (b) COMPARATIVE REPORT ON EXPORT CONTROL

6 SYSTEMS AMONG COUNTRIES.—The Secretary shall in7 clude, in each annual report under subsection (a), a de8 scription of significant differences between the export con9 trol laws and regulations of the United States and its

10 major trade competitors, particularly as these differences

11 relate to the implementation of multilateral export control

12 regimes. The Secretary shall include—

13 (1) an assessment of the impact of these dif14 ferences on important interests of the United States;

15 (2) a description of the extent to which the ex16 ecutive branch intends to address these differences;

17 and

18 (3) a listing of unilateral controls and embar19 goes imposed by the United States that are in effect,

20 with a quantification of their economic impact, in21 cluding the effect of such controls and embargoes on

22 employment in the United States.

23 (c) GAO REPORT.—The Comptroller General shall

24 prepare and submit to the Congress, not later than 120
175

•HR 361 EH

1 days after each report under subsection (b) is submitted,

2 an analysis of such report.

3 SEC. 116. DEFINITIONS.

4 As used in this title:

5 (1) AFFILIATE.—The term ‘‘affiliate’’ includes

6 both governmental entities and commercial entities

7 that are controlled in fact by a country.

8 (2) ADHERENT.—An ‘‘adherent’’ to a multilat9 eral regime is a country that is a member of that

10 regime or that, pursuant to an international under11 standing to which the United States is a party, con12 trols exports in accordance with the criteria and

13 standards of that regime.

14 (3) AUSTRALIA GROUP.—The term ‘‘Australia

15 Group’’ means the multilateral regime in which the

16 United States participates that seeks to prevent the

17 proliferation of chemical and biological weapons.

18 (4) CHEMICAL WEAPONS CONVENTION.—The

19 term ‘‘Chemical Weapons Convention’’ refers to the

20 Convention on the Prohibition of the Development,

21 Production, Stockpiling and Use of Chemical Weap22 ons and on Their Destruction of 1992.

23 (5) COMMODITY.—The term ‘‘commodity’’

24 means any article, natural or manmade substance,

25 material, software, source code, supply, or manufac-
176

•HR 361 EH

1 tured product, including inspection and test equip2 ment, and excluding technical data.

3 (6) CONTROL OR CONTROLLED.—The terms

4 ‘‘control’’ and ‘‘controlled’’ refer to a licensing re5 quirement, a written reexport authorization require6 ment, or a prohibition on an export.

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

8 index’’ means the United States Commodity Control

9 Index established under section 104(b)(1).

10 (8) CONTROLLED COUNTRY.—The term ‘‘con11 trolled country’’ means a country to which exports

12 are controlled under section 105 or 106.

13 (9) EXPORT.—(A) The term ‘‘export’’—

14 (i) means—

15 (I) an actual shipment, transfer, or

16 transmission of items out of the United

17 States; and

18 (II) a transfer to any person of items

19 either within the United States or outside

20 of the United States with the knowledge or

21 intent that the items will be shipped,

22 transferred, or transmitted outside the

23 United States; and

24 (ii) includes the term ‘‘reexport’’.
177

•HR 361 EH

1 (B) The Secretary may further define the term

2 export by regulation to include, among other con3 cepts, that—

4 (i) a transfer of items in the United States

5 to an embassy or affiliate of a country is an ex6 port to the country,

7 (ii) disclosure of technology to a foreign

8 person is deemed to be an export to the country

9 of which he or she is a national, and

10 (iii) transfer of effective control from one

11 country to another over a satellite above the

12 earth is an export from one country to another.

13 (C) As used in this paragraph, the term ‘‘for14 eign person’’ means—

15 (i) an individual who is not a United

16 States citizen or an alien lawfully admitted for

17 permanent residence to the United States;

18 (ii) any corporation, partnership, business

19 association, society, trust, organization, or other

20 nongovernmental entity created or organized

21 under the laws of a foreign country or that has

22 its principal place of business outside the Unit23 ed States; and
178

•HR 361 EH

1 (iii) any governmental entity of a foreign

2 country that is operating as a business enter3 prise.

4 (10) EXPORT CONTROL REGIME, MULTILAT5 ERAL EXPORT CONTROL REGIME, MULTILATERAL

6 REGIME, AND REGIME.—The terms ‘‘export control

7 regime’’, ‘‘multilateral export control regime’’, ‘‘mul8 tilateral regime’’, and ‘‘regime’’ each means an

9 international agreement or an arrangement among

10 two or more countries, including the United States,

11 a purpose of which is to coordinate national export

12 control policies of participating countries regarding

13 certain items. Such terms include the Australia

14 Group, the Wassenaar Arrangement, the MTCR,

15 and the Nuclear Supplies Group.

16 (11) FOREIGN AVAILABILITY, AVAILABLE IN

17 FACT TO CONTROLLED COUNTRIES.—The terms

18 ‘‘foreign availability’’ and ‘‘available in fact to con19 trolled countries’’ each include production or avail20 ability of any item from any country—

21 (A) in which the item is not restricted for

22 export to any controlled country; or

23 (B) in which such export restrictions are

24 determined by the Secretary to be ineffective.
179

•HR 361 EH

1 For purposes of subparagraph (B), the mere inclu2 sion of items on a list of items subject to export con3 trols imposed pursuant to a multilateral export con4 trol regime shall not alone constitute credible evi5 dence that the government of a country provides an

6 effective means of controlling the export of such

7 items to controlled countries.

8 (12) ITEM.—The term ‘‘item’’ means any com9 modity, technology, or other information.

10 (13) LICENSING REQUIREMENT.—The term ‘‘li11 censing requirement’’ includes any restriction or

12 condition, including recordkeeping and reporting,

13 imposed by the Secretary under this title in licensing

14 the export of a commodity, technology, or other in15 formation.

16 (14) MEMBER OF AN EXPORT CONTROL RE17 GIME.—A ‘‘member’’ of an export control regime,

18 multilateral export control regime, multilateral re19 gime, or regime is a country that participates in that

20 regime.

21 (15) MISSILE.—The term ‘‘missile’’ means any

22 missile system or component listed in category I of

23 the MTCR Annex, and any other unmanned delivery

24 system or component of similar capability, as well as
180

•HR 361 EH

1 the specially designed production facilities for these

2 systems.

3 (16) MISSILE TECHNOLOGY CONTROL REGIME;

4 MTCR.—The term ‘‘Missile Technology Control Re5 gime’’ or ‘‘MTCR’’ means the policy statement and

6 guidelines between the United States, the United

7 Kingdom, the Federal Republic of Germany, France,

8 Italy, Canada, and Japan, announced on April 16,

9 1987, to restrict sensitive missile-related transfers

10 based on the MTCR Annex, and any amendments

11 thereto.

12 (17) MTCR ANNEX.—The term ‘‘MTCR

13 Annex’’ means the Equipment and Technology

14 Annex of the MTCR, and any amendments thereto.

15 (18) NUCLEAR EXPLOSIVE DEVICE.—The term

16 ‘‘nuclear explosive device’’ means any device, wheth17 er assembled or disassembled, that is designed to

18 produce an instantaneous release of an amount of

19 nuclear energy from special nuclear material that is

20 greater than the amount of energy that would be re21 leased from the detonation of one pound of trinitro22 toluene (TNT).

23 (19) NUCLEAR SUPPLIERS’ GROUP.—The term

24 ‘‘Nuclear Suppliers’ Group’’ means the multilateral

25 arrangement in which the United States participates
181

•HR 361 EH

1 whose purpose is to restrict the transfers of items

2 with relevance to the nuclear fuel cycle or nuclear

3 explosive applications.

4 (20) PERSON.—Except as provided in section

5 111, the term ‘‘person’’ includes—

6 (A) the singular and the plural and any in7 dividual, partnership, corporation, business as8 sociation, society, trust, organization, or any

9 other group created or organized under the laws

10 of a country; and

11 (B) any government, or any governmental

12 body, corporation, trust, agency, department, or

13 group, operating as a business enterprise.

14 (21) REEXPORT.—The term ‘‘reexport’’ means

15 the shipment, transfer, transshipment, or diversion

16 of items from one foreign country to another.

17 (22) SECRETARY.—The term ‘‘Secretary’’

18 means the Secretary of Commerce or any successor

19 officer performing functions of the Secretary of

20 Commerce under this title.

21 (23) TECHNOLOGY.—The term ‘‘technology’’

22 means specific information that is necessary for the

23 development, production, or use of a commodity, in24 cluding source code, and that takes the form of tech25 nical data or technical assistance.
182

•HR 361 EH

1 (24) UNILATERAL AND UNILATERALLY.—The

2 terms ‘‘unilateral’’ and ‘‘unilaterally’’, with respect

3 to an export control on a commodity or technology,

4 refer to a control that is not similarly imposed in

5 similar circumstances by any country other than the

6 United States, and that materially restricts the ex7 port of the commodity or technology.

8 (25) UNITED STATES.—The term ‘‘United

9 States’’ means the States of the United States, the

10 District of Columbia, and any commonwealth, terri11 tory, dependency, or possession of the United States,

12 and includes the outer Continental Shelf, as defined

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

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

15 (26) UNITED STATES PERSON.—The term

16 ‘‘United States person’’ means any United States

17 citizen, resident, or national (other than an individ18 ual resident outside the United States and employed

19 by other than a United States person), any domestic

20 concern (including any permanent domestic estab21 lishment of any foreign concern) and any foreign

22 subsidiary or affiliate (including any permanent for23 eign establishment) of any domestic concern which is

24 controlled in fact by such domestic concern, as de25 termined under regulations of the President.
183

•HR 361 EH

1 (27) WASSENAAR ARRANGEMENT.—The term

2 ‘‘Wassenaar Arrangement’’ means the multilateral

3 regime in which the United States participates that

4 seeks to promote transparency and responsibility

5 with regard to the transfers of conventional arma6 ments and sensitive dual-use goods and technologies.

7 (28) WEAPON OF MASS DESTRUCTION.—The

8 term ‘‘weapon of mass destruction’’ means any

9 chemical, biological, or nuclear weapon, including a

10 nuclear explosive device.

11 SEC. 117. EFFECTS ON OTHER ACTS.

12 (a) COMMODITY JURISDICTION.—

13 (1) COORDINATION OF CONTROLS.—The au14 thority granted under this title and under section 38

15 of the Arms Export Control Act (22 U.S.C. 2778)

16 shall be exercised in such a manner as to achieve ef17 fective coordination between the licensing systems

18 under this title and such section 38 and to share in19 formation regarding the trustworthiness of parties.

20 (2) ELIMINATION OF OVERLAPPING CON21 TROLS.—Notwithstanding any other provision of

22 law, no item may be included on both the control

23 index and the United States Munitions List after

24 the date of the enactment of this Act.
184

•HR 361 EH

1 (3) COMMODITY JURISDICTION DISPUTE RESO2 LUTION.—The President shall establish procedures

3 for the resolution of commodity jurisdiction disputes

4 among departments and agencies of the United

5 States. Such disputes shall normally be resolved

6 within 60 days, and the procedures shall allow dis7 putes to be referred to the President normally within

8 90 days. These procedures shall also—

9 (A) require the Secretary and the Sec10 retary of State to refer matters to each other

11 in accordance with their respective jurisdictions;

12 (B) require transparency, among the Sec13 retary, the Secretary of State, and the Sec14 retary of Defense, in commodity jurisdiction

15 cases and commodity classification requests and

16 determinations;

17 (C) provide for interagency meetings and

18 consultations to permit the free exchange of

19 views regarding significant jurisdictional issues;

20 and

21 (D) provide deadlines for action and stand22 ards for decision, and ensure that disputes that

23 cannot be resolved may be referred to the Presi24 dent by the Secretary of State, the Secretary of

25 Defense, or the Secretary.
185

•HR 361 EH

1 (b) IN GENERAL.—Except as otherwise provided in

2 this title, nothing in this title shall be construed to modify,

3 repeal, supersede, or otherwise affect the provisions of any

4 other laws authorizing control over exports of any com5 modities, technology, or other information.

6 (c) LICENSING PROCESS.—The provisions of section

7 109 shall supersede the procedures published pursuant to

8 section 309(c) of the Nuclear Non-Proliferation Act of

9 1978 (42 U.S.C. 2139a(c)) to the extent such procedures

10 are inconsistent with the provisions of section 109.

11 (d) AMENDMENTS TO THE INTERNATIONAL EMER12 GENCY ECONOMIC POWERS ACT.—

13 (1) EXERCISE OF PRESIDENTIAL AUTHORITY.—

14 (A) Section 204(b) of the International Emergency

15 Economic Powers Act (50 U.S.C. 1703(b)) is

16 amended—

17 (i) by striking ‘‘and’’ at the end of para18 graph (4);

19 (ii) by striking the period at the end of

20 paragraph (5) and inserting ‘‘; and’’; and

21 (iii) by adding at the end the following:

22 ‘‘(6) if the action is being taken unilaterally—

23 ‘‘(A) why the President believes the action

24 is necessary to meet the unusual and extraor25 dinary threat referred to in paragraph (2); and
186

•HR 361 EH

1 ‘‘(B) what steps the President is taking to

2 gain multilateral support for the action.’’.

3 (B) Section 204(c) of that Act (50 U.S.C.

4 1703(c)) is amended—

5 (i) by striking ‘‘(5)’’ and inserting ‘‘(6)’’;

6 and

7 (ii) by striking the period and inserting ‘‘,

8 and, in the case of controls referred to in para9 graph (6) of subsection (b), the President shall

10 report to the Congress on the economic losses

11 that have occurred as a result of the unilateral

12 action’’.

13 (2) CONFIDENTIALITY OF INFORMATION.—The

14 International Emergency Economic Powers Act is

15 amended—

16 (A) by redesignating section 208 as section

17 209; and

18 (B) by inserting after section 207 the fol19 lowing:

20 ‘‘SEC. 208. CONFIDENTIALITY OF INFORMATION.

21 ‘‘(a) EXEMPTIONS FROM DISCLOSURE.—Information

22 obtained under this title before or after the enactment of

23 this section may be withheld only to the extent permitted

24 by statute, except that information submitted, obtained,
187

•HR 361 EH

1 or considered in connection with any transaction that

2 would otherwise be prohibited under this title, including—

3 ‘‘(1) the license or other authorization itself,

4 ‘‘(2) classification requests or other inquiries on

5 the applicability of export license requirements to a

6 proposed transaction or series of transactions,

7 ‘‘(3) information or evidence obtained in the

8 course of any investigation, and

9 ‘‘(4) information obtained or furnished under

10 this title in connection with international agree11 ments, treaties, or obligations,

12 shall be withheld from public disclosure, and shall not be

13 subject to disclosure under section 552 of title 5, United

14 States Code, unless the release of such information is de15 termined by the Secretary of Commerce or the Secretary

16 of the Treasury to be in the national interest. In the case

17 of information obtained or furnished under this title in

18 connection with international agreements, treaties, or obli19 gations, such a determination may be made only after con20 sultation with the Secretary of State.

21 ‘‘(b) INFORMATION TO CONGRESS AND GAO.—

22 ‘‘(1) IN GENERAL.—Nothing in this title shall

23 be construed as authorizing the withholding of infor24 mation from the Congress or from the General Ac25 counting Office.
188

•HR 361 EH

1 ‘‘(2) AVAILABILITY TO THE CONGRESS.—

2 ‘‘(A) IN GENERAL.—All information ob3 tained at any time under this title regarding

4 the control of exports, including any report or

5 license application required under this title,

6 shall be made available to any committee or

7 subcommittee of Congress of appropriate juris8 diction upon the request of the chairman or

9 ranking minority member of such committee or

10 subcommittee.

11 ‘‘(B) PROHIBITION ON FURTHER DISCLO12 SURE.—No committee, subcommittee, or Mem13 ber of Congress shall disclose any information

14 obtained under this title or previous Acts re15 garding the control of exports which is submit16 ted on a confidential basis to the Congress

17 under subparagraph (A) unless the full commit18 tee to which the information is made available

19 determines that the withholding of the informa20 tion is contrary to the national interest.

21 ‘‘(3) AVAILABILITY TO THE GAO.—

22 ‘‘(A) IN GENERAL.—Notwithstanding para23 graph (1), information referred to in paragraph

24 (2) shall, consistent with the protection of intel25 ligence, counterintelligence, and law enforce-
189

•HR 361 EH

1 ment sources, methods, and activities, as deter2 mined by the agency that originally obtained

3 the information, and consistent with the provi4 sions of section 716 of title 31, United States

5 Code, be made available only by the agency,

6 upon request, to the Comptroller General of the

7 United States or to any officer or employee of

8 the General Accounting Office authorized by

9 the Comptroller General to have access to such

10 information.

11 ‘‘(B) PROHIBITION ON FURTHER DISCLO12 SURES.—No officer or employee of the General

13 Accounting Office shall disclose, except to the

14 Congress in accordance with this subsection,

15 any such information which is submitted on a

16 confidential basis and from which any individ17 ual can be identified.

18 ‘‘(c) PENALTIES FOR DISCLOSURE OF CONFIDEN19 TIAL INFORMATION.—Any officer or employee of the Unit20 ed States, or any department or agency thereof, who pub21 lishes, divulges, discloses, or makes known in any manner

22 or to any extent not authorized by law any confidential

23 information that—

24 ‘‘(1) he or she obtains in the course of his or

25 her employment or official duties or by reason of any
190

•HR 361 EH

1 examination or investigation made by, or report or

2 record made to or filed with, such department or

3 agency, or officer or employee thereof, and

4 ‘‘(2) is exempt from disclosure under this sec5 tion,

6 shall be fined not more than $10,000, or imprisoned not

7 more than 1 year, or both, shall be removed from office

8 or employment, and shall be subject to a civil penalty of

9 not more than $1,000.’’.

10 (3) PENALTIES.—Section 206 of the Inter11 national Emergency Economic Powers Act (50

12 U.S.C. 1705) is amended—

13 (A) in subsection (a) by inserting ‘‘, or at14 tempts to violate,’’ after ‘‘violates’’; and

15 (B) in subsection (b) by inserting ‘‘, or

16 willfully attempts to violate,’’ after ‘‘violates’’.

17 (e) AMENDMENTS TO THE TRADING WITH THE

18 ENEMY ACT.—Section 16 of the Trading With the Enemy

19 Act (50 U.S.C. App. 16) is amended—

20 (1) in subsection (a)—

21 (A) by inserting ‘‘, or attempt to violate,’’

22 after ‘‘violate’’ the first place it appears; and

23 (B) by inserting ‘‘attempt to violate,’’ after

24 ‘‘violate,’’ the second place it appears; and
191

•HR 361 EH

1 (2) in subsection (b)(1) by inserting ‘‘, or at2 tempts to violate,’’ after ‘‘violates’’.

3 (f) REPORT ON OFAC AND ODTC.—

4 (1) STUDY ON OFAC.—The Secretary of the

5 Treasury shall study ways to make the operations of

6 the Office of Foreign Assets Control of the Depart7 ment of the Treasury more effective and efficient in

8 responding to licensing requests and other inquiries

9 of United States exporters, including through the

10 upgrading of technology in that office.

11 (2) STUDY ON ODTC.—The Secretary of State

12 shall study ways to make the Office of Defense

13 Trade Controls of the Department of State more ef14 fective and efficient in responding to licensing re15 quests and other inquiries of United States export16 ers, including through the upgrading of technology

17 in that office.

18 (3) SUBMISSION OF REPORTS.—Not later than

19 6 months after the date of the enactment of this

20 Act, the Secretary of the Treasury shall submit to

21 the Congress a report on the study conducted under

22 paragraph (1) and the Secretary of State shall sub23 mit to the Congress a report on the study conducted

24 under paragraph (2).
192

•HR 361 EH

1 SEC. 118. SECONDARY ARAB BOYCOTT.

2 (a) SENSE OF CONGRESS.—

3 (1) ENDING SECONDARY BOYCOTT.—It is the

4 sense of the Congress that the countries of the Arab

5 League should end the secondary Arab boycott.

6 (2) ACTIONS TO END SECONDARY BOYCOTT.—

7 The United States will consider the secondary Arab

8 boycott to have ended when—

9 (A) the Arab League issues a public pro10 nouncement that the Arab League has ended

11 the secondary Arab boycott;

12 (B) all activities carried out by the Central

13 Office for the Boycott of Israel in support of

14 the secondary Arab boycott have been termi15 nated;

16 (C) the Arab League and the individual

17 countries that are members of the Arab League

18 have terminated the practice of barring United

19 States persons and foreign companies that do

20 not comply with the secondary Arab boycott

21 from doing business with countries that are

22 members of the Arab League, and have de23 clared null and void any existing list of such

24 barred persons and companies; and

25 (D) the Arab League, and the individual

26 countries that are the members of the Arab
193

•HR 361 EH

1 League, have ceased requesting United States

2 persons to take actions prohibited under section

3 108(a).

4 (b) DEFINITION.—For purposes of this section, the

5 term ‘‘secondary Arab boycott’’ means the refusal to do

6 business with persons who do not comply with requests

7 to take any action prohibited under section 108(a) with

8 respect to Israel.

9 SEC. 119. CONFORMING AMENDMENTS.

10 (a) ARMS EXPORT CONTROL ACT.—

11 (1) Section 38 of the Arms Export Control Act

12 (22 U.S.C. 2778) is amended—

13 (A) in subsection (e)—

14 (i) in the first sentence by striking

15 ‘‘subsections (c)’’ and all that follows

16 through ‘‘12 of such Act’’ and inserting

17 ‘‘subsections (b), (c), (d) and (e) of section

18 110 of the Export Administration Act of

19 1996, by subsections (a) and (b) of section

20 113 of such Act, and by section 114(g) of

21 such Act’’; and

22 (ii) in the third sentence by striking

23 ‘‘11(c) of the Export Administration Act of

24 1979’’ and inserting ‘‘110(c) of the Export

25 Administration Act of 1996’’; and
194

•HR 361 EH

1 (B) in subsection (g)(1)(A) by striking

2 clause (ii) and inserting the following:

3 ‘‘(ii) section 110 of the Export Administra4 tion Act of 1996,’’.

5 (2) Section 39A(c) of the Arms Export Control

6 Act, as added by the Foreign Relations Authoriza7 tion Act, Fiscal Years 1994 and 1995, is amended—

8 (A) by striking ‘‘(c),’’ and all that follows

9 through ‘‘12(a) of such Act’’ and inserting ‘‘(c),

10 (d), and (e) of section 110, section 112(c), and

11 subsections (a) and (b) of section 113, of the

12 Export Administration Act of 1996’’; and

13 (B) by striking ‘‘11(c)’’ and inserting

14 ‘‘110(c)’’.

15 (3) Section 40(k) of the Arms Export Control

16 Act (22 U.S.C. 2780(k)) is amended—

17 (A) by striking ‘‘11(c), 11(e), 11(g), and

18 12(a) of the Export Administration Act of

19 1979’’ and inserting ‘‘110(b), 110(c), 110(e),

20 113(a), and 113(b) of the Export Administra21 tion Act of 1996’’; and

22 (B) by striking ‘‘11(c)’’ and inserting

23 ‘‘110(c)’’.

24 (4) Section 73A of the Arms Export Control

25 Act, as added by the Foreign Relations Authoriza-
195

•HR 361 EH

1 tion Act, Fiscal Years 1995 and 1995, is amended

2 by striking ‘‘a MTCR adherent’’ and inserting ‘‘an

3 MTCR adherent’’.

4 (b) OTHER PROVISIONS OF LAW.—

5 (1) Section 5(b)(4) of the Trading with the

6 Enemy Act (12 U.S.C. 95a(4); 50 U.S.C. App.

7 5(b)(4)) is amended by striking ‘‘section 5 of the

8 Export Administration Act of 1979, or under section

9 6 of that Act to the extent that such controls pro10 mote the nonproliferation or antiterrorism policies of

11 the United States’’ and inserting ‘‘the Export Ad12 ministration Act of 1996’’.

13 (2) Section 502B(a)(2) of the Foreign Assist14 ance Act of 1961 (22 U.S.C. 2304(a)(2)) is amend15 ed in the second sentence—

16 (A) by striking ‘‘Export Administration

17 Act of 1979’’ the first place it appears and in18 serting ‘‘Export Administration Act of 1996’’;

19 and

20 (B) by striking ‘‘Act of 1979)’’ and insert21 ing ‘‘Act of 1996)’’.

22 (3)(A) Section 140(a) of the Foreign Relations

23 Authorization Act, Fiscal Years 1988 and 1989 (22

24 U.S.C. 2656f(a)) is amended—
196

•HR 361 EH

1 (i) in paragraph (1)(B) by inserting ‘‘or

2 section 106(i) of the Export Administration Act

3 of 1996’’ after ‘‘Act of 1979’’; and

4 (ii) in paragraph (2) by striking ‘‘6(j) of

5 the Export Administration Act of 1979’’ and

6 inserting ‘‘106(i) of the Export Administration

7 Act of 1996’’.

8 (B) For purposes of the report required by

9 March 31, 1996, under section 140(a) of the For10 eign Relations Authorization Act, Fiscal Years 1988

11 and 1989, the reference in paragraph (2) of such

12 section to ‘‘section 106(i) of the Export Administra13 tion Act of 1996’’ shall be deemed to refer to ‘‘sec14 tion 6(j) of the Export Administration Act of 1979

15 or section 106(i) of the Export Administration Act

16 of 1996’’.

17 (4) Section 40(e)(1) of the State Department

18 Basic Authorities Act of 1956 (22 U.S.C.

19 2712(e)(1)) is amended by striking ‘‘6(j)(1) of the

20 Export Administration Act of 1979’’ and inserting

21 ‘‘106(i)(1) of the Export Administration Act of

22 1996’’.

23 (5) Section 110 of the International Security

24 and Development Cooperation Act of 1980 (22
197

•HR 361 EH

1 U.S.C. 2778a) is amended by striking ‘‘Act of

2 1979’’ and inserting ‘‘Act of 1996’’.

3 (6) Section 205(d)(4)(B) of the State Depart4 ment Basic Authorities Act of 1956 (22 U.S.C.

5 4305(d)(4)(B)) is amended by striking ‘‘6(j) of the

6 Export Administration Act of 1979’’ and inserting

7 ‘‘106(i) of the Export Administration Act of 1996’’.

8 (7) Section 203(b)(3) of the International

9 Emergency Economic Powers Act (50 U.S.C.

10 1702(b)(3)) is amended by striking ‘‘section 5 of the

11 Export Administration Act of 1979, or under section

12 6 of such Act to the extent that such controls pro13 mote the nonproliferation or antiterrorism policies of

14 the United States’’ and inserting ‘‘the Export Ad15 ministration Act of 1996’’.

16 (8) Section 491(f) of the Forest Resources Con17 servation and Shortage Relief Act of 1990 (16

18 U.S.C. 620c(f)) is repealed.

19 (9) Section 499 of the Forest Resources Con20 servation and Shortage Relief Act of 1990 (16

21 U.S.C. 620j) is amended by striking ‘‘section 7 of

22 the Export Administration Act of 1979’’ and insert23 ing ‘‘section 107 of the Export Act of 1996’’.

24 (10) Section 1605 (a)(7)(A) of title 28, United

25 States Code, is amended by striking ‘‘6(j) of the Ex-
198

•HR 361 EH

1 port Administration Act of 1979 (50 U.S.C. App.

2 2405(j))’’ and inserting ‘‘106(i) of the Export Ad3 ministration Act of 1996’’.

4 (11) Section 2332d(a) of title 18, United States

5 Code, is amended by striking ‘‘6(j) of the Export

6 Administration Act (50 U.S.C. App. 2405)’’ and in7 serting ‘‘106(i) of the Export Administration Act of

8 1996’’.

9 (12) Section 620H (a)(1) of the Foreign Assist10 ance Act of 1961 (22 U.S.C. 2378(a)(1)) is amend11 ed by striking ‘‘6(j) of the Export Administration

12 Act of 1979 (50 U.S.C. App. 2405(j))’’ and insert13 ing ‘‘106(i) of the Export Administration Act of

14 1996’’.

15 (13) Section 1621(a) of the International Fi16 nancial Institutions Act (22 U.S.C. 262p–4q(a)) is

17 amended by striking ‘‘6(j) of the Export Administra18 tion Act of 1979 (50 U.S.C. App. 2405(j))’’ and in19 serting ‘‘106(i) of the Export Administration Act of

20 1996’’.

21 (c) REPEAL.—The Export Administration Act of

22 1979 is repealed.

23 SEC. 120. EXPIRATION DATE.

24 This title expires on June 30, 2001.
199

•HR 361 EH

1 SEC. 121. SAVINGS PROVISIONS.

2 (a) IN GENERAL.—All delegations, rules, regulations,

3 orders, determinations, licenses, or other forms of admin4 istrative action which have been made, issued, conducted,

5 or allowed to become effective under—

6 (1) the Export Control Act of 1949, the Export

7 Administration Act of 1969, or the Export Adminis8 tration Act of 1979, or

9 (2) those provisions of the Arms Export Control

10 Act which are amended by section 119,

11 and are in effect at the time this title takes effect, shall

12 continue in effect according to their terms until modified,

13 superseded, set aside, or revoked under this title or the

14 Arms Export Control Act.

15 (b) ADMINISTRATIVE AND JUDICIAL PROCEED16 INGS.—

17 (1) EXPORT ADMINISTRATION ACT.—This title

18 shall not affect any administrative or judicial pro19 ceedings commenced or any application for a license

20 made, under the Export Administration Act of 1979,

21 which is pending at the time this title takes effect.

22 Any such proceedings, and any action on such appli23 cation, shall continue under the Export Administra24 tion Act of 1979 as if that Act had not been re25 pealed.
200

•HR 361 EH

1 (2) OTHER PROVISIONS OF LAW.—This title

2 shall not affect any administrative or judicial pro3 ceedings commenced or any application for a license

4 made, under those provisions of the Arms Export

5 Control Act which are amended by section 119, if

6 such proceedings or application is pending at the

7 time this title takes effect. Any such proceedings,

8 and any action on such application, shall continue

9 under those provisions as if those provisions had not

10 been amended by section 119.

11 (c) TREATMENT OF CERTAIN DETERMINATIONS.—

12 Any determination with respect to the government of a

13 foreign country under section 6(j) of the Export Adminis14 tration Act of 1979, that is in effect at the time this title

15 takes effect, shall, for purposes of this title or any other

16 provision of law, be deemed to be made under section

17 106(i) of this Act until superseded by a determination

18 under such section 106(i).

19 TITLE II—NUCLEAR

20 PROLIFERATION PREVENTION

21 SEC. 201. REPEAL OF TERMINATION OF PROVISIONS OF

22 THE NUCLEAR PROLIFERATION PREVENTION

23 ACT OF 1994.

24 (a) REPEAL.—Part D of the Nuclear Proliferation

25 Prevention Act of 1994 (part D of title VIII of the For-
201

•HR 361 EH

1 eign Relations Authorization Act, Fiscal Years 1994 and

2 1995; Public Law 103–236; 108 Stat. 525) is hereby re3 pealed.

4 (b) PRESIDENTIAL DETERMINATIONS.—Section

5 824(c) of the Nuclear Proliferation Prevention Act of

6 1994 is amended by striking ‘‘, in writing after oppor7 tunity for a hearing on the record,’’.

8 (c) JUDICIAL REVIEW.—Section 824 of the Nuclear

9 Proliferation Prevention Act of 1994 is amended—

10 (1) by striking subsection (e); and

11 (2) by redesignating subsections (f) through (k)

12 as subsections (e) through (j), respectively.

13 (d) CONFORMING AMENDMENT.—Section

14 102(b)(2)(G) of the Arms Export Control Act (22 U.S.C.

15 2799aa–1(b)(2)(G)) is amended by striking ‘‘section 6 of

16 the Export Administration Act of 1979’’ and inserting

17 ‘‘section 105 or 106 of the Export Administration Act of

18 1996’’.

19 SEC. 202. SEEKING MULTILATERAL SUPPORT FOR UNILAT20 ERAL SANCTIONS.

21 The Secretary of State, in consultation with appro22 priate departments and agencies, shall seek the support

23 of other countries for sanctions imposed under the Nuclear

24 Proliferation Prevention Act of 1994 or the amendments

25 made by that Act.
202

•HR 361 EH

1 SEC. 203. SANCTIONS UNDER THE NUCLEAR PROLIFERA2 TION PREVENTION ACT OF 1994.

3 Section 102(b)(2) of the Arms Export Control Act

4 (22 U.S.C. 2799aa–1(b)(2)) is amended—

5 (1) in subparagraph (D) by striking ‘‘shall not

6 apply—’’ and all that follows through the end of

7 clause (ii) and inserting ‘‘shall not apply to humani8 tarian assistance.’’;

9 (1) in subparagraph (G) by striking ‘‘, except

10 that’’ and all that follows through the end of the

11 subparagraph and inserting a period; and

12 (3) by adding at the end the following:

13 ‘‘(H)(i) The President shall prohibit the impor14 tation into the United States of specific products

15 produced in that country by persons who have en16 gaged in the activities described in paragraph (1)

17 that were the basis of the President’s determination

18 under such paragraph.

19 ‘‘(ii) In the event that it is not possible to iden20 tify the persons who have engaged in the activities

21 described in paragraph (1) that were the basis of the

22 President’s determination under such paragraph, the

23 President shall prohibit the importation into the

24 United States of products produced in that country

25 by those persons that the President shall designate

26 as most closely identified with those activities.
203

•HR 361 EH

1 ‘‘(iii) For purposes of this subparagraph, the

2 term ‘person’ means—

3 ‘‘(I) a natural person;

4 ‘‘(II) a corporation, business association,

5 partnership, society, or trust, or any other non6 governmental entity, organization, or group;

7 ‘‘(III) a governmental entity operating as a

8 business enterprise;

9 ‘‘(IV) a division or office of a governmental

10 department; or

11 ‘‘(V) a military unit or successor to such

12 unit.

13 ‘‘(iv) The prohibition on imports imposed under

14 this subparagraph shall be in addition to any other

15 prohibition on imports in effect before the Presi16 dent’s determination under paragraph (1) is made.

17 The prohibitions contained in subparagraphs (D), (G),

18 and (H) shall not apply to any transaction subject to the

19 reporting requirements of title V of the National Security

20 Act of 1947.’’.

Passed the House of Representatives July 16, 1996.

Attest:

Clerk.