Union Calendar No. 322

104TH CONGRESS

2D SESSION H. R. 361

[Report No. 104–605, Parts I and II]

A BILL

To provide authority to control exports, and for

other purposes.

JUNE 27, 1996

Reported from the Committee on Ways and Means, comState of the Union, and ordered to be printed mitted to the Committee of the Whole House on the
IB

Union Calendar No. 322

104TH CONGRESS

2D SESSION H. R. 361

[Report No. 104–605, Parts I and II]

To provide authority to control exports, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 4, 1995

Mr. ROTH introduced the following bill; which was referred to the Committee

on International Relations

JUNE 5, 1996

Reported with an amendment, referred to the Committee on Ways and Means

for a period ending not later than June 28, 1996, for consideration of

such provisions of the bill and amendment as fall within the jurisdiction

of that committee pursuant to clause 1(s) of rule X

[Strike out all after the enacting clause and insert the part printed in italic]

JUNE 27, 1996

Reported from the Committee on Ways and Means, committed to the Committee of the Whole House on the State of the Union, and ordered to be

printed

[For text of introduced bill, see copy of bill as introduced on January 4, 1995]

A BILL

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,
2

•HR 361 RH

1 SECTION 1. TABLE OF CONTENTS.

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

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.

3 TITLE I—EXPORT

4 ADMINISTRATION

5 SEC. 101. SHORT TITLE.

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

7 Act of 1996’’.

8 SEC. 102. FINDINGS.

9 The Congress makes the following findings:

10 (1) Export controls are a part of a comprehen11 sive response to national security threats. United
3

•HR 361 RH

1 States exports should be restricted only for significant

2 national security, nonproliferation, and foreign policy

3 reasons.

4 (2) Exports of certain commodities and tech5 nology may adversely affect the national security and

6 foreign policy of the United States by making a sig7 nificant contribution to the military potential of in8 dividual countries or by disseminating the capability

9 to design, develop, test, produce, stockpile, or use

10 weapons of mass destruction, missile delivery systems,

11 and other significant military capabilities. Therefore,

12 the administration of export controls should empha13 size the control of these exports.

14 (3) The acquisition of sensitive commodities and

15 technology by those countries and end users whose ac16 tions or policies run counter to United States na17 tional security or foreign policy interests may en18 hance the military capabilities of those countries, par19 ticularly their ability to design, develop, test, produce,

20 stockpile, use, and deliver nuclear, chemical, and bio21 logical weapons, missile delivery systems, and other

22 significant military capabilities. This enhancement

23 threatens the security of the United States and its al24 lies, and places additional demands on the defense

25 budget of the United States. Availability to countries
4

•HR 361 RH

1 and end users of items that contribute to military ca2 pabilities or the proliferation of weapons of mass de3 struction is a fundamental concern of the United

4 States and should be eliminated through negotiations

5 and other appropriate 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 terms

9 of their effects on the United States economy.

10 (5) Export controls cannot be the sole instrument

11 of the United States to prevent a country or end user

12 from developing weapons of mass destruction. For this

13 reason, export controls should be applied as part of a

14 comprehensive response to security threats.

15 (6) The national security of the United States

16 depends not only on wise foreign policies and a

17 strong defense, but also a vibrant national economy.

18 To be truly effective, export controls should be applied

19 uniformly by all suppliers.

20 (7) International treaties, such as the Chemical

21 Weapons Convention, and international agreements

22 and arrangements intended to control, lessen, or

23 eliminate weapons of mass destruction should be fully

24 implemented by, among other things, imposing re25 strictions on imports and exports of designated items,
5

•HR 361 RH

1 monitoring, and transmitting reports on, the produc2 tion, processing, consumption, export, and import of

3 designated items, and complying with verification re4 gimes mandated by such treaties, agreements, and ar5 rangements.

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

7 sole source of critical supplies, unilateral export con8 trols are generally not truly effective in influencing

9 the behavior of other governments or impeding access

10 to controlled items. Unilateral controls alone may im11 pede access to United States sources of supply without

12 affecting the ability of countries to obtain controlled

13 items elsewhere. Moreover, unilateral controls gen14 erally permit foreign competitors to serve markets the

15 United States Government denies to United States

16 firms and workers, thus impairing the reliability of

17 United States suppliers in comparison with their for18 eign competitors. At the same time, the need to lead

19 the international community or overriding national

20 security or foreign policy interests may justify unilat21 eral controls in specific cases.

22 (9) The United States recognizes the importance

23 of comprehensive enforcement measures to maximize

24 the effectiveness of multilateral controls.
6

•HR 361 RH

1 (10) The United States export control system

2 must not be overly restrictive or bureaucratic, or un3 dermine the competitive position of United States in4 dustry. The export control system must be efficient,

5 responsive, transparent, and effective.

6 (11) Export restrictions that negatively affect the

7 United States industrial base may ultimately weaken

8 United States military capabilities and lead to de9 pendencies on foreign sources for key components.

10 (12) Minimization of restrictions on exports of

11 agricultural commodities and products is of critical

12 importance to the maintenance of a sound agricul13 tural sector, to a positive contribution to the balance

14 of payments, to reducing the level of Federal expendi15 tures for agricultural support programs, and to Unit16 ed States cooperation in efforts to eliminate malnutri17 tion and world hunger.

18 (13) Minimization of restrictions on the export

19 of information technology products and services is of

20 critical importance to United States leadership in re21 moving obstacles to the effective development of a su22 perior global information infrastructure and the new

23 jobs and markets, increased trade and information

24 flows, improved national security, and new tools for
7

•HR 361 RH

1 the improvement of the quality of life for people glob2 ally that will be created.

3 (14) The United States should play a leading

4 role in promoting transparency and responsibility

5 with regard to the transfers of conventional arma6 ments and sensitive dual-use goods and technologies.

7 SEC. 103. POLICY STATEMENT.

8 It is the policy of the United States to do the following:

9 (1) To stem the proliferation of weapons of mass

10 destruction, and the means to deliver them, and other

11 significant military capabilities by—

12 (A) leading international efforts to control

13 the proliferation of chemical and biological

14 weapons, nuclear explosive devices, missile deliv15 ery systems, and other significant military capa16 bilities;

17 (B) controlling involvement of United

18 States persons in, and contributions by United

19 States persons to, foreign programs intended to

20 develop weapons of mass destruction, missiles,

21 and other significant military capabilities, and

22 the means to design, test, develop, produce, stock23 pile, or use them; and

24 (C) implementing international treaties or

25 other agreements or arrangements concerning
8

•HR 361 RH

1 controls on exports of designated items, reports

2 on the production, processing, consumption, and

3 exports and imports of such items, and compli4 ance with verification programs.

5 (2) To restrict the export of items—

6 (A) that would significantly contribute to

7 the military potential of countries so as to prove

8 detrimental to the national security of the Unit9 ed States or its allies; or

10 (B) where necessary to further significantly

11 the foreign policy of the United States or to ful12 fill its declared international commitments.

13 (3) To—

14 (A) minimize uncertainties in export con15 trol policy; and

16 (B) encourage trade with all countries with

17 which the United States has diplomatic or trad18 ing relations, except those countries with which

19 such trade has been determined by the President

20 to be against the national interest.

21 (4) To restrict export trade when necessary to

22 protect the domestic economy from the excessive drain

23 of scarce materials and to reduce the serious infla24 tionary impact of foreign demand.
9

•HR 361 RH

1 (5) To further increase the reliance of the United

2 States upon multilateral coordination of controls

3 through effective control regimes that maintain lists of

4 controlled items that are truly critical to the control

5 objectives, strive to increase membership to include all

6 relevant countries, maintain common criteria and

7 procedures for licensing, and harmonize member

8 countries’ licensing practices. It is the policy of the

9 United States that multilateral controls are the best

10 means of achieving the control objectives of the United

11 States.

12 (6) To impose unilateral controls only when it is

13 necessary to further significantly the national secu14 rity or foreign policy of the United States, and only

15 after full consideration of the economic impact of the

16 controls and their effectiveness in achieving their in17 tended objectives.

18 (7) To make all licensing determinations in a

19 timely manner so undue delays in the licensing proc20 ess will not cause a United States person to lose an

21 export sale.

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

23 acts of international terrorism and to encourage other

24 countries to take immediate steps to prevent the use

25 of their territories or resources to aid, encourage, or
10

•HR 361 RH

1 give sanctuary to those persons involved in directing,

2 supporting, or participating in acts of international

3 terrorism. To this end, consistent with the policies of

4 this section and the provisions of this title, the United

5 States should, by restricting exports to countries that

6 have violated international norms of behavior by re7 peatedly supporting acts of international terrorism,

8 distance itself from those countries.

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

10 or boycotts fostered or imposed by foreign countries

11 against other countries friendly to the United States

12 or against any United States person.

13 (B) To encourage and, in specified cases, require

14 United States persons engaged in the export of com15 modities, technology, and other information to refuse

16 to take actions, including furnishing information or

17 entering into or implementing agreements, which

18 have the effect of furthering or supporting the restric19 tive trade practices or boycotts fostered or imposed by

20 any foreign country against a country friendly to the

21 United States or against any United States person.

22 (10) To streamline export control functions and

23 increase administrative accountability, and thereby

24 better serve the exporting public by reducing and
11

•HR 361 RH

1 eliminating overlapping, conflicting, and inconsistent

2 regulatory burdens.

3 (11) To minimize restrictions on the export of

4 agricultural commodities and products.

5 (12) To minimize restrictions on the export of

6 information technology products and services as part

7 of a flexible regulatory environment that can keep

8 pace with the rapid technological changes necessary to

9 realize the full economic, societal, and national secu10 rity benefits of United States leadership in the devel11 opment of a superior global information infrastruc12 ture.

13 (13) To cooperate with other countries to pro14 mote greater transparency and responsibility with re15 gard to the transfers of armaments and sensitive

16 goods and technologies, both for the purpose of devel17 oping common understandings of the risks to inter18 national peace and regional security associated with

19 the transfers of such items and to coordinate national

20 control policies to combat those risks.

21 (14) To enhance the national security and non22 proliferation interests of the United States. To this

23 end and consistent with the other policies of this sec24 tion and the provisions of this title, the United States

25 will use export controls when necessary to ensure that
12

•HR 361 RH

1 access to weapons of mass destruction, missile deliv2 ery systems, and other significant military capabili3 ties is restricted. While the multilateral nonprolifera4 tion regimes will be the primary instruments through

5 which the United States will pursue its nonprolifera6 tion goals, it may also, consistent with the policies of

7 this section and the provisions of this title, take uni8 lateral action.

9 (15) To promote international peace, stability,

10 and respect for fundamental human rights. The Unit11 ed States may establish controls on exports that con12 tribute to the military capabilities of countries that

13 threaten international peace or stability or to coun14 tries that abuse the fundamental rights of their citi15 zens, or to promote other important foreign policy ob16 jectives of the United States, consistent with the poli17 cies of this section and the provisions of this title.

18 SEC. 104. GENERAL PROVISIONS.

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

20 the Secretary may impose, consistent with the provisions

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

22 appropriate to the effective and efficient implementation of

23 this title, including the following:

24 (1) SPECIFIC EXPORTS.—A license authorizing a

25 specific export.
13

•HR 361 RH

1 (2) MULTIPLE EXPORTS.—Licenses authorizing

2 multiple exports, issued pursuant to an application

3 by the exporter, in lieu of a license for each such ex4 port. Licenses under this paragraph shall be designed

5 to encourage and acknowledge exporters’ internal con6 trol programs for ensuring compliance with the terms

7 of the license.

8 (b) UNITED STATES COMMODITY CONTROL INDEX.—

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

10 and maintain, in consultation with the Secretary of

11 Defense and the heads of other appropriate depart12 ments and agencies, a United States Commodity Con13 trol Index specifying the license requirements under

14 this title that are applicable to the items on the list.

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

16 (A) consist of a multilateral control list of

17 items on which export controls are imposed

18 under section 105, an emergency control list of

19 items on which export controls are imposed

20 under section 106, and a short supply control

21 list of commodities on which export controls are

22 imposed under section 107;

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

24 emergency control lists, those items identified

25 pursuant to section 111(a);
14

•HR 361 RH

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

2 specify with particularity the performance

3 (where applicable) and other identifying charac4 teristics of the item and provide a rationale for

5 why the item is on the control list;

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

7 end uses or end users, including specific projects

8 and end users of concern, cross-referenced with

9 the list of commodities and technology on which

10 export controls are imposed; and

11 (E) be sufficiently specific and clear as to

12 guide exporters and licensing officers in deter13 minations of licensing requirements under this

14 title.

15 (c) DENIED OR DEBARRED PARTIES, SANCTIONED

16 PARTIES, BLOCKED PERSONS, SPECIALLY DESIGNATED

17 NATIONALS, AND OTHER PARTIES PRESENTING UNACCEPT18 ABLE RISKS OF DIVERSION.—

19 (1) DENIED OR DEBARRED PARTIES, SANC20 TIONED PARTIES, BLOCKED PERSONS, AND SPECIALLY

21 DESIGNATED NATIONALS.—The President shall ensure

22 that an official list is published semiannually in the

23 Federal Register of all parties denied or debarred

24 from export privileges under this title or under the

25 Arms Export Control Act, all parties sanctioned for
15

•HR 361 RH

1 prohibited proliferation activity under this title or

2 other statutes, and all blocked persons and specially

3 designated nationals. For purposes of this paragraph,

4 a ‘‘blocked person’’ or ‘‘specially designated national’’

5 is a person or entity so designated by the President

6 or the Secretary of the Treasury under the Trading

7 With the Enemy Act, or the International Emergency

8 Economic Powers Act, with whom transactions are

9 prohibited on account of the relationship of that per10 son or entity with a country, organization, or activ11 ity against which sanctions are imposed under either

12 such Act. Promptly after any person is designated a

13 ‘‘blocked person’’ or ‘‘specially designated national’’,

14 the Secretary of the Treasury shall publish such des15 ignation in the Federal Register.

16 (2) OTHER PARTIES.—The Secretary shall main17 tain a list of parties for whom licenses under this title

18 will be presumptively denied.

19 (d) DELEGATION OF AUTHORITY.—Subject to the pro20 visions of this title, the President may delegate the power,

21 authority, and discretion conferred upon the President by

22 this title to such departments, agencies, and officials of the

23 Government as the President considers appropriate, except

24 that no authority under this title may be delegated to, or

25 exercised by, any official of any department or agency the
16

•HR 361 RH

1 head of which is not appointed by the President, by and

2 with the advice and consent of the Senate. The President

3 may not delegate or transfer his power, authority, or discre4 tion to overrule or modify any recommendation or decision

5 made by the Secretary, the Secretary of Defense, or the Sec6 retary of State under this title and may not delegate the

7 authority under section 106(a)(4).

8 (e) NOTIFICATION OF THE PUBLIC; CONSULTATION

9 WITH BUSINESS.—The Secretary shall keep the public fully

10 apprised of changes in export control policy and procedures

11 instituted in conformity with this title with a view to en12 couraging trade. The Secretary shall consult regularly with

13 representatives of a broad spectrum of enterprises, labor or14 ganizations, and citizens interested in or affected by export

15 controls, in order to obtain their views on United States

16 export control policy and the foreign availability of items

17 subject to controls.

18 (f) EXPORT ADVISORY COMMITTEES.—

19 (1) APPOINTMENT.—Upon his or her own initia20 tive or upon the written request of representatives of

21 a substantial segment of any industry which produces

22 any items subject to export controls under this title or

23 under the International Emergency Economic Powers

24 Act, or being considered for such controls, the Sec25 retary shall appoint export advisory committees with
17

•HR 361 RH

1 respect to any such items. Each such committee shall

2 consist of representatives of United States industry

3 and Government, including the Department of Com4 merce and other appropriate departments and agen5 cies of the Government. The Secretary shall permit

6 the widest possible participation by the business com7 munity on the export advisory committees.

8 (2) FUNCTIONS.—Export advisory committees

9 appointed under paragraph (1) shall advise and as10 sist the Secretary, and any other department, agency,

11 or official of the Government carrying out functions

12 under this title, on actions (including all aspects of

13 controls imposed or proposed) designed to carry out

14 the policies of this title concerning the items with re15 spect to which such export advisory committees were

16 appointed. Such committees, where they have exper17 tise in such matters, shall be consulted on questions

18 involving—

19 (A) technical matters,

20 (B) worldwide availability and actual utili21 zation of production technology,

22 (C) licensing procedures which affect the

23 level of export controls applicable to any items,

24 (D) revisions of the multilateral control list

25 (as provided in section 105(g)), including pro-
18

•HR 361 RH

1 posed revisions of multilateral controls in which

2 the United States participates,

3 (E) the issuance of regulations,

4 (F) the impact and interpretation of exist5 ing regulations,

6 (G) processes and procedures for review of

7 licenses and policy,

8 (H) any other questions relating to actions

9 designed to carry out this title, and

10 (I) the operation and conduct of inter11 national business transactions.

12 Nothing in this subsection shall prevent the United

13 States Government from consulting, at any time, with

14 any person representing an industry or the general

15 public, regardless of whether such person is a member

16 of an export advisory committee. Members of the pub17 lic shall be given a reasonable opportunity, pursuant

18 to regulations prescribed by the Secretary, to present

19 evidence to such committees.

20 (3) REIMBURSEMENT OF EXPENSES.—Upon the

21 request of any member of any export advisory com22 mittee appointed under paragraph (1), the Secretary

23 may, if the Secretary determines it to be appropriate,

24 reimburse such member for travel, subsistence, and
19

•HR 361 RH

1 other necessary expenses incurred by such member in

2 connection with the duties of such member.

3 (4) CHAIRPERSON.—Each export advisory com4 mittee appointed under paragraph (1) shall elect a

5 chairperson, and shall meet at least every 3 months

6 at the call of the chairperson, unless the chairperson

7 determines, in consultation with the other members of

8 the committee, that such a meeting is not necessary

9 to achieve the purposes of this subsection. Each such

10 committee shall be terminated after a period of 2

11 years, unless extended by the Secretary for additional

12 periods of 2 years each. The Secretary shall consult

13 with each such committee on such termination or ex14 tension of that committee.

15 (5) ACCESS TO INFORMATION.—To facilitate the

16 work of the export advisory committees appointed

17 under paragraph (1), the Secretary, in conjunction

18 with other departments and agencies participating in

19 the administration of this title, shall disclose to each

20 such committee adequate information, consistent with

21 national security, pertaining to the reasons for the ex22 port controls which are in effect or contemplated for

23 the items or policies for which that committee fur24 nishes advice. Information provided by the export ad25 visory committees shall not be subject to disclosure
20

•HR 361 RH

1 under section 552 of title 5, United States Code, and

2 such information shall not be published or disclosed

3 unless the Secretary determines that the withholding

4 thereof is contrary to the national interest.

5 (g) DEVELOPMENT AND REVIEW OF THE CONTROL

6 INDEX.—

7 (1) IN GENERAL.—

8 (A) Consistent with the general guidance of

9 the Export Control Policy Committee established

10 in section 114(c), the Secretary of Defense and

11 the heads of other appropriate departments and

12 agencies may identify and recommend to the

13 Secretary—

14 (i) commodities and technology for in15 clusion on, or deletion from, the multilat16 eral and emergency control lists; and

17 (ii) the licensing requirements that

18 should or should not apply to these com19 modities and technology.

20 (B) The Secretary of Defense shall have pri21 mary responsibility for identifying commodities

22 and technologies that are critical to the design,

23 development, test, production, stockpiling, or use

24 of weapons of mass destruction and other mili25 tary capabilities, including nuclear, biological,
21

•HR 361 RH

1 and chemical weapons, and manned and un2 manned vehicles capable of delivering such weap3 ons, in determining recommendations for inclu4 sion of items on the control index.

5 (C) If the Secretary of Defense, the Sec6 retary of State, or the Secretary of Energy dis7 agrees with the decision of the Secretary regard8 ing the inclusion or deletion, or licensing re9 quirements of, any commodity or technology, the

10 Secretary of Defense, State, or Energy (as the

11 case may be) may, within 30 days after the Sec12 retary makes the decision, appeal the Secretary’s

13 decision to the President in writing, but only on

14 the basis of the specific provisions of this title. If

15 the Secretary of Defense, the Secretary of State,

16 or the Secretary of Energy fails to appeal a deci17 sion of the Secretary in accordance with the pre18 ceding sentence, he or she shall be deemed to have

19 no objection to the decision. The President shall

20 resolve a disagreement under this subsection not

21 later than 30 days after the appeal is made

22 under this paragraph.

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

24 consultation with appropriate departments and agen25 cies, shall be responsible for conducting negotiations
22

•HR 361 RH

1 with other countries regarding multilateral arrange2 ments for restricting the export of items to carry out

3 the policies of this title. All appropriate departments

4 and agencies shall develop initial technical param5 eters and product definitions in connection with the

6 development of proposals within the United States

7 Government to be made to multilateral regimes, in

8 consultation with the export advisory committees as

9 provided in paragraph (3).

10 (3) CONSULTATIONS WITH EXPORT ADVISORY

11 COMMITTEES.—The Secretary shall consult with the

12 appropriate export advisory committee appointed

13 under this section with respect to changes in the con14 trol index, and such export advisory committee may

15 submit recommendations to the Secretary with respect

16 to such changes. The Secretary shall consider the rec17 ommendations of the export advisory committee and

18 shall inform the committee of the disposition of its

19 recommendations. The Secretary shall also seek com20 ments and recommendations from the public in con21 nection with changes in the control index. To the

22 maximum extent practicable and consistent with the

23 conduct of international negotiations, such comments

24 and recommendations should be taken into consider25 ation in the development of United States Govern-
23

•HR 361 RH

1 ment proposals and positions to be taken in multilat2 eral regimes.

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

4 to export may be required under this title, or under regula5 tions issued under this title, except to carry out the policies

6 set forth in section 103.

7 (i) INTERNATIONAL OBLIGATIONS UNDER TREA8 TIES.—Notwithstanding any other provision of this title

9 containing limitations on authority to control exports, the

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

11 impose controls on exports to a particular country or coun12 tries in order to fulfill obligations of the United States

13 under resolutions of the United Nations and under treaties

14 to which the United States is a party. The Secretary may

15 regulate domestic and foreign conduct consistent with the

16 policies of such United Nations resolutions, treaties, and

17 other international agreements. Such authority shall in18 clude, but not be limited to, authority to prohibit activity

19 such as financing, contracting, providing services, or em20 ployment, to deny access to items in the United States and

21 abroad, to conduct audits of records and inspections of fa22 cilities, to compel reports, and to curtail travel.

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

24 the submission or processing of an export license applica25 tion under this title.
24

•HR 361 RH

1 SEC. 105. MULTILATERAL CONTROLS.

2 (a) AUTHORITY.—

3 (1) IN GENERAL.—In order to carry out the poli4 cies set forth in paragraphs (1), (2), (5), (13), (14),

5 and (15) of section 103, the President may, in accord6 ance with this section, prohibit, curtail, or require the

7 provision of information regarding, the export of any

8 commodities, technology, or other information subject

9 to the jurisdiction of the United States, or exported

10 by any person subject to the jurisdiction of the United

11 States, in order to implement multilateral export con12 trol regimes. The authority under this paragraph

13 shall include, but not be limited to, the authority to

14 regulate domestic and foreign conduct, to prohibit ac15 tivity such as financing, contracting, providing serv16 ices, or employment, to deny access to items in the

17 United States and abroad, to conduct audits of

18 records and inspections of facilities, and to compel re19 ports. The authority granted by this subsection may

20 not be exercised to impose unilateral controls.

21 (2) EXERCISE OF AUTHORITY.—The authority

22 granted by this subsection shall be implemented by

23 the Secretary, in consultation with appropriate de24 partments and agencies.

25 (3) CONSISTENCY WITH EXPORT CONTROL RE26 GIMES.—Any provision of this title that provides that
25

•HR 361 RH

1 no authority or permission to export may be required

2 under this title shall not apply to the extent that such

3 a provision is inconsistent with an international

4 commitment of the United States under a multilateral

5 export control regime.

6 (b) MULTILATERAL CONTROL LIST.—The Secretary

7 shall, in consultation with appropriate departments and

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

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

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

11 this section.

12 (c) EXPORT LICENSING POLICIES.—The President

13 shall ensure that steps are taken to increase the degree to

14 which the licensing requirements of other export regime

15 members are harmonized with the licensing requirements

16 maintained by the Secretary in controlling items under this

17 section.

18 (d) MULTILATERAL CONTROL REGIMES.—

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

20 set forth in section 103, the Secretary of State, in con21 sultation with appropriate departments and agencies,

22 should seek multilateral arrangements that are in23 tended to secure effective achievement of these policies

24 and, in so doing, also establish fairer and more pre-
26

•HR 361 RH

1 dictable competitive opportunities for United States

2 exporters.

3 (2) STANDARDS FOR NATIONAL SYSTEMS.—In the

4 establishment and maintenance of multilateral re5 gimes, the Secretary of State, in consultation with

6 appropriate departments and agencies, shall take

7 steps to attain the cooperation of members of the re8 gimes in the effective implementation of export control

9 systems. Such systems should contain the following

10 elements:

11 (A) National laws providing enforcement

12 authorities, civil and criminal penalties, and

13 statutes of limitations sufficient to deter poten14 tial violations and punish violators.

15 (B) A program to evaluate export license

16 applications that includes sufficient technical ex17 pertise to assess the licensing status of exports

18 and ensure the reliability of end users.

19 (C) An enforcement mechanism that pro20 vides authority for trained enforcement officers

21 to investigate and prevent illegal exports.

22 (D) A system of export control documenta23 tion to verify the movement of items.
27

•HR 361 RH

1 (E) Procedures for the coordination and ex2 change of information concerning licensing, end

3 users, and enforcement.

4 (F) Adequate national resources devoted to

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

6 (3) STANDARDS FOR MULTILATERAL REGIMES.—

7 In the establishment and maintenance of multilateral

8 regimes, the Secretary of State, in consultation with

9 appropriate departments and agencies, should seek,

10 consistent with the policies set forth in section 103,

11 the following features for the multilateral control re12 gimes in which the United States participates:

13 (A) FULL MEMBERSHIP.—Achieve member14 ship of all supplier countries whose policies and

15 activities are consistent with the objectives and

16 membership criteria of the multilateral regime.

17 (B) EFFECTIVE ENFORCEMENT AND COMPLI18 ANCE.—Promote enforcement and compliance

19 with the rules and guidelines of the members of

20 the regime through maintenance of an effective

21 control list.

22 (C) PUBLIC UNDERSTANDING.—Enhance

23 public understanding of each regime’s purpose

24 and procedures.
28

•HR 361 RH

1 (D) EFFECTIVE IMPLEMENTATION PROCE2 DURES.—Achieve procedures for effective imple3 mentation of the rules and guidelines of the re4 gime through uniform and consistent interpreta5 tions of export controls agreed to by the govern6 ments participating in the regime.

7 (E) ENHANCED COOPERATION AMONG RE8 GIME MEMBERS.—Reach agreement to enhance

9 cooperation among members of the regime in ob10 taining the agreement of governments outside the

11 regime to restrict the export of items controlled

12 by the regime, to establish an ongoing mecha13 nism in the regime to coordinate planning and

14 implementation of export control measures relat15 ed to such agreements, and to remove items from

16 the list of items controlled by the regime if the

17 control of such items no longer serves the objec18 tives of the members of the regime.

19 (F) PERIODIC HIGH-LEVEL MEETINGS.—

20 Conduct periodic meetings of high-level rep21 resentatives of participating governments for the

22 purpose of coordinating export control policies

23 and issuing policy guidance to members of the

24 regime.
29

•HR 361 RH

1 (G) COMMON LIST OF CONTROLLED

2 ITEMS.—Reach agreement on a common list of

3 items controlled by the regime.

4 (H) TREATMENT OF CERTAIN COUNTRIES.—

5 Prevent the export or diversion of the most sen6 sitive items to countries whose activities are

7 threatening to the national security of the United

8 States or its allies.

9 (I) DISCLOSURE OF NONPROPRIETARY IN10 FORMATION.—Promote transparency and timely

11 disclosure of nonproprietary information with

12 respect to the transfers of sensitive dual-use com13 modities and technologies, when appropriate, for

14 the purpose of developing common understand15 ings of the risks to international peace and re16 gional security associated with such transfers

17 and to coordinate national control policies to

18 combat those risks.

19 (e) INCENTIVES FOR PARTNERSHIP.—Consistent with

20 the policies of this title and consistent with the objectives,

21 rules, and guidelines of the individual regime—

22 (1) the Secretary, in consultation with appro23 priate departments and agencies, may provide for ex24 ports free of license requirements to and among mem-
30

•HR 361 RH

1 bers of a multilateral regime for items subject to con2 trols under such a multilateral regime; and

3 (2) the Secretary, in consultation with appro4 priate departments and agencies, may adjust licens5 ing policies with respect to a particular country or

6 entity for access to items controlled under this title to

7 the extent of the adherence of that country or entity

8 to the export control policies of this section.

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

10 shall be consistent with the requirements of section

11 111(a)(1)(C).

12 (f) TRANSPARENCY OF MULTILATERAL CONTROL RE13 GIMES.—

14 (1) PUBLICATION OF INFORMATION ON EACH EX15 ISTING REGIME.—Within 6 months after the date of

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

17 extent doing so is not inconsistent with arrangements

18 in multilateral export control regimes, publish in the

19 Federal Register the following information with re20 spect to each multilateral control regime existing on

21 the date of the enactment of this Act:

22 (A) Purposes of the control regime.

23 (B) Members of the regime.

24 (C) Licensing policy.
31

•HR 361 RH

1 (D) Items subject to the controls under the

2 regime, together with all public notes, under3 standings, and other aspects of the agreement of

4 the regime, and all changes thereto.

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

6 that are subject to the controls.

7 (F) Rules of interpretation.

8 (G) Major policy actions.

9 (H) The rules and procedures of the regime

10 for establishing and modifying any matter de11 scribed in subparagraphs (A) through (G) and

12 for reviewing export license applications.

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

14 United States joins or organizes a new export control

15 regime, the Secretary shall, to the extent doing so is

16 not inconsistent with arrangements in the regime,

17 publish the information described in subparagraphs

18 (A) through (H) of paragraph (1) with respect to that

19 regime.

20 (3) PUBLICATION OF CHANGES.—Within 2

21 months after the applicable regime adopts any

22 changes in the information published under this sub23 section, the Secretary shall, to the extent doing so is

24 not inconsistent with arrangements in the regime,

25 publish such changes in the Federal Register.
32

•HR 361 RH

1 (g) REVIEW OF CONTROLLED ITEMS.—

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

3 the Export Control Policy Committee established in

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

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

6 the multilateral control list maintained under sub7 section (b) at least every 2 years, except that the Sec8 retary shall review annually whether the policy set

9 forth in section 103(12) is being achieved. At the con10 clusion of each review, the Secretary shall decide

11 whether to maintain or remove items from the multi12 lateral control list, maintain, change, or eliminate the

13 specifications, performance thresholds, or licensing re14 quirements on items on the list, or add items to the

15 list.

16 (2) CONSIDERATIONS.—In conducting the review,

17 the Secretary shall—

18 (A) consult with the Secretary of Defense

19 concerning militarily critical technologies;

20 (B) consult with the appropriate export ad21 visory committees appointed under section 104(f)

22 and consider recommendations of such commit23 tees with respect to proposed changes in the mul24 tilateral control list;
33

•HR 361 RH

1 (C) consider whether controlled items or

2 their equivalent are so widely available in the

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

4 means of sale and delivery) that the requirement

5 for a license is ineffective in achieving the pur6 pose of the control;

7 (D) consider whether the differences between

8 the export controls of the United States and that

9 of governments of foreign suppliers or competing

10 items effectively has placed or will place the

11 United States exporter at a significant commer12 cial disadvantage with respect to its competitors

13 abroad, and has placed, or will place, employ14 ment in the United States in jeopardy;

15 (E) consider the results of determinations

16 made under section 114(k); and

17 (F) consider comments received pursuant to

18 the notice of review provided under paragraph

19 (3)(A).

20 (3) PROCEDURES.—

21 (A) NOTICE OF REVIEW.—Before beginning

22 each review under this subsection, the Secretary

23 shall publish a notice of that review in the Fed24 eral Register and shall provide a 30-day period
34

•HR 361 RH

1 for comments and submission of data, including

2 by exporters and other interested parties.

3 (B) PROPOSALS TO EXPORT CONTROL RE4 GIMES.—If a revision to the multilateral control

5 list or to a licensing requirement under this

6 paragraph is inconsistent with the control lists,

7 guidelines, or the licensing requirements of, an

8 export control regime, the Secretary of State

9 shall propose such revision to that regime. Such

10 revision shall become effective only to the extent

11 such revision is agreed to by the export control

12 regime.

13 (C) PUBLICATION OF REVISIONS.—The Sec14 retary shall publish in the Federal Register any

15 revisions in the list, with an explanation of the

16 reasons for the revisions.

17 SEC. 106. EMERGENCY CONTROLS.

18 (a) AUTHORITY.—

19 (1) IN GENERAL.—In order to carry out the pol20 icy set forth in paragraphs (1), (2), (6), (8), (14), and

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

22 with the provisions of this section, unilaterally pro23 hibit, curtail, or require the provision of information

24 regarding the export of any commodity, technology, or

25 other information subject to the jurisdiction of the
35

•HR 361 RH

1 United States or exported by any person subject to the

2 jurisdiction of the United States. The authority under

3 this paragraph shall include, but not be limited to,

4 the authority to regulate domestic and foreign con5 duct, to prohibit activity such as financing, contract6 ing, providing services, or employment, to deny access

7 to items in the United States and abroad, to conduct

8 audits of records and inspections of facilities, and to

9 compel reports.

10 (2) EXERCISE OF AUTHORITY.—The authority

11 contained in this section shall be exercised by the Sec12 retary, in consultation with the Secretary of State,

13 the Secretary of Defense, and such other departments

14 and agencies as the President considers appropriate,

15 and consistent with the procedures in section 104(g).

16 (3) EXPIRATION OF CONTROLS.—

17 (A) IN GENERAL.—Any controls imposed

18 under this section shall expire 12 months after

19 they are imposed, unless they are terminated

20 earlier by the President or unless they are ex21 tended under this section, except that such con22 trols may be adopted as multilateral controls

23 under section 105 or included in an embargo

24 that is imposed by the President under the Inter25 national Emergency Economic Powers Act, the
36

•HR 361 RH

1 Trading with the Enemy Act, or other provision

2 of law other than this title. Any extension or

3 subsequent extension of the controls under this

4 section shall be for a period of not more than

5 1 year each. The controls shall expire at the end

6 of each such extension unless they are terminated

7 earlier by the President or unless they are fur8 ther extended under this section, except that such

9 controls may be adopted as multilateral controls

10 under section 105 or included in an embargo de11 scribed in the first sentence of this subparagraph.

12 (B) EXCEPTION FOR MULTILATERAL AGREE13 MENTS.—Subparagraph (A) shall not apply to

14 controls imposed by the President in order to ful15 fill obligations of the United States under resolu16 tions of the United Nations or under treaties to

17 which the United States is a party. If such a res18 olution or treaty ceases to be in effect, controls

19 imposed by the President pursuant to such reso20 lution or treaty shall immediately cease to be in

21 effect.

22 (4) CRITERIA.—Controls may be imposed, ex23 panded, or extended under this section only if the

24 President determines that—
37

•HR 361 RH

1 (A) the controls are necessary to further sig2 nificantly the nonproliferation, national secu3 rity, or foreign policies of the United States pro4 vided in section 103, the objective of the controls

5 is in the overall national interest of the United

6 States, and reasonable alternative means to the

7 controls are not available;

8 (B) the controls are likely to make substan9 tial progress toward achieving the intended pur10 pose of—

11 (i) changing, modifying, or constrain12 ing the undesirable conduct or policies of

13 the country to which the controls apply;

14 (ii) denying access by the country to

15 controlled items from all sources;

16 (iii) establishing multilateral coopera17 tion to deny the country access to controlled

18 items from all sources; or

19 (iv) denying exports or assistance that

20 significantly contributes to the proliferation

21 of weapons of mass destruction or other im22 portant military capabilities, terrorism, or

23 human rights abuses;

24 (C) the proposed controls are compatible

25 with the foreign policy objectives of the United
38

•HR 361 RH

1 States and with overall United States policy to2 ward the country to which the controls apply;

3 (D) the reaction of other countries to the

4 imposition, expansion, or extension of such ex5 port controls by the United States is not likely

6 to render the controls ineffective in achieving the

7 intended purpose or to be counter-productive to

8 United States policy interests;

9 (E) the effect of the proposed controls on the

10 export performance of the United States, the

11 competitive position of the United States as a

12 supplier of items, or on the economic well-being

13 of individual United States companies and their

14 employees and communities does not exceed the

15 benefit to the United States foreign policy, non16 proliferation, or national security interests; and

17 (F) the United States has the ability to en18 force the proposed controls effectively.

19 (b) CONSULTATION WITH INDUSTRY.—The Secretary

20 shall consult with and seek advice from affected United

21 States industries and export advisory committees appointed

22 under section 104(f) before the imposition, expansion, or ex23 tension of any export control under this section.

24 (c) CONSULTATION WITH OTHER COUNTRIES.—When

25 expanding or extending export controls under this section
39

•HR 361 RH

1 (unless such action is taken under subsection (a)(3)(B)), the

2 Secretary of State, in consultation with appropriate de3 partments and agencies, shall, at the earliest appropriate

4 opportunity, consult with the countries with which the

5 United States maintains export controls cooperatively, and

6 with other countries, as appropriate, to advise them of the

7 reasons for the action and to urge them to adopt similar

8 controls.

9 (d) CONSULTATIONS WITH THE CONGRESS.—

10 (1) CONSULTATIONS.—The Secretary may im11 pose, expand, or extend export controls under this sec12 tion only after consultation with the Congress, includ13 ing the Committee on International Relations of the

14 House of Representatives and the Committee on

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

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

17 or expand controls under subsection (a) until the Sec18 retary has submitted to the Congress a report—

19 (A) addressing each of the criteria set forth

20 in subsection (a)(4);

21 (B) specifying the purpose of the controls;

22 (C) describing the nature, the subjects, and

23 the results of, or plans for, the consultation with

24 industry under subsection (b) and with other

25 countries under subsection (c);
40

•HR 361 RH

1 (D) specifying the nature and results of any

2 alternative means attempted to achieve the objec3 tives of the controls, or the reasons for imposing

4 or expanding the controls without attempting

5 any such alternative means; and

6 (E) describing the availability from other

7 countries of items comparable to the items sub8 ject to the controls, and describing the nature

9 and results of the efforts made to secure the co10 operation of foreign governments in controlling

11 the foreign availability of such comparable items.

12 Such report shall also indicate how such controls will

13 further significantly the policies of the United States

14 as set forth in section 103 or will further its declared

15 international obligations.

16 (e) SEEKING MULTILATERAL SUPPORT FOR UNILAT17 ERAL CONTROLS.—The Secretary of State, in consultation

18 with appropriate departments and agencies, shall have a

19 continuing duty to seek support for controls imposed under

20 this section by other countries and by effective multilateral

21 control regimes.

22 (f) PROCEDURES AND LIMITATIONS ON EMERGENCY

23 CONTROLS.—

24 (1) CESSATION OF EMERGENCY CONTROLS.—
41

•HR 361 RH

1 (A) IN GENERAL.—Controls imposed under

2 this section on commodities, technology, or other

3 information shall cease to be in effect imme4 diately upon—

5 (i) the imposition of similarly restric6 tive controls under section 105 on the same

7 commodities, technology, or information to

8 the country or end user, or for the end use,

9 with respect to which the controls were im10 posed under this section; or

11 (ii) the imposition of an embargo,

12 under the International Emergency Eco13 nomic Powers Act, the Trading with the

14 Enemy Act, or other provision of law, on

15 exports to, and imports from the country

16 with respect to which the controls were im17 posed under this section.

18 (B) CONVERSION TO MULTILATERAL AGREE19 MENTS.—If the President imposes controls on

20 commodities, technology, or other information to

21 a country or end user, or for an end use, under

22 this section in order to fulfill obligations of the

23 United States under resolutions of the United

24 Nations or under a treaty to which the United

25 States is a party, any equivalent controls im-
42

•HR 361 RH

1 posed prior thereto under this section on the

2 same commodities, technology, or information to

3 the same country or end user, or for the same

4 end use, shall immediately cease to be in effect.

5 (2) LIMITATIONS ON REIMPOSITION.—Controls

6 which have ceased to be in effect under subsection

7 (a)(3), and which have not been extended under sub8 section (g), may not be reimposed by the President

9 under subsection (a) for a period of 6 months begin10 ning on the date on which the original controls ex11 pire, unless the President determines that reimposi12 tion of controls is warranted due to significant

13 changes in circumstances since the expiration of the

14 controls.

15 (g) EXTENSION OF EMERGENCY CONTROLS.—

16 (1) REPORT.—If the President decides to extend

17 controls imposed under subsection (a), which are due

18 to expire under subsection (a)(3), the President shall,

19 not later than 30 calendar days before the expiration

20 of such controls, transmit to the Congress a report on

21 the proposed extension, setting forth the reasons for

22 the proposed extension in detail and specifying the

23 period of time, which may not exceed 1 year, for

24 which the controls are proposed to be extended. In

25 particular, such report shall—
43

•HR 361 RH

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 country

11 to controlled items from all sources;

12 (III) establishing multilateral co13 operation to deny the country access to

14 controlled items from all sources; or

15 (IV) denying exports or assistance

16 that significantly contributes to the

17 proliferation of weapons of mass de18 struction or other important military

19 capabilities, terrorism, or human

20 rights abuses;

21 (ii) that the impact of the controls has

22 been compatible with the foreign policy ob23 jectives of the United States and with over24 all United States policy toward the con25 trolled country;
44

•HR 361 RH

1 (iii) that the reaction of other countries

2 to the imposition or expansion of the con3 trols by the United States has not rendered

4 the controls ineffective in achieving the in5 tended purpose and have not been counter6 productive to United States policy interests;

7 (iv) that the effect of the controls on the

8 export performance of the United States, the

9 competitive position of the United States as

10 a supplier of items, and the economic well11 being of individual United States compa12 nies and their employees and communities

13 has not exceeded the benefit to the United

14 States foreign policy, nonproliferation, or

15 national security interests; and

16 (v) that the United States has enforced

17 the controls effectively.

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

19 upon the expiration of the controls extended under

20 this subsection, the President determines that a fur21 ther extension of emergency controls for an additional

22 period of time of not more than 1 year is necessary,

23 paragraph (1) shall apply to such further extension.

24 (h) EFFECT ON OTHER AUTHORITY.—
45

•HR 361 RH

1 (1) EMBARGO AUTHORITY.—Nothing in this sec2 tion shall be construed to limit the authority of the

3 President to impose an embargo on exports to, and

4 imports from, a specific country under the Inter5 national Emergency Economic Powers Act, the Trad6 ing with the Enemy Act, or other provision of law

7 (other than this title). In any case in which the Presi8 dent exercises any such authority to impose an em9 bargo, the requirements of this section shall not apply

10 for so long as such embargo is in effect.

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

12 Nothing in this section affects the authorities con13 ferred upon the President by section 5(b) of the Trad14 ing with the Enemy Act, which were being exercised

15 with respect to a country on July 1, 1977, as a result

16 of a national emergency declared by the President be17 fore that date, and are being exercised on the date of

18 the enactment of this Act.

19 (B) Nothing in this section affects the authorities

20 conferred upon the President by the International

21 Economic Powers Act or other provision of law (other

22 than the Export Administration Act of 1979), which

23 were being exercised with respect to a country before

24 the date of the enactment of this Act as a result of

25 a national emergency declared by the President before
46

•HR 361 RH

1 that date, and are being exercised with respect to such

2 country on such date of enactment.

3 (i) COUNTRIES SUPPORTING INTERNATIONAL TERROR4 ISM.—

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

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

7 country the government of which the Secretary of

8 State has determined has repeatedly provided support

9 for acts of international terrorism.

10 (B) The exports referred to in subparagraph (A)

11 are—

12 (i) of any commodity or technology the ex13 port of which is controlled under this title pursu14 ant to the Wassenaar Arrangement, the Missile

15 Technology Control Regime, or the Australia

16 Group, or controlled under this title pursuant to

17 section 309(c) of the Nuclear Non-Proliferation

18 Act of 1978,

19 (ii) of any other commodity or technology

20 the export of which is controlled under this title

21 pursuant to multilateral export control regimes

22 in which the United States participates, and

23 (iii) of any commodity or technology which

24 could make a significant contribution to the

25 military potential of a country described in sub-
47

•HR 361 RH

1 paragraph (A), including its military logistics

2 capability, or could enhance the ability of such

3 country to support acts of international terror4 ism,

5 other than food, medicine, or medical supplies that

6 the President determines will be used only for human7 itarian purposes. An individual validated license

8 shall be required for the export under this subpara9 graph of any such food, medicine, or medical sup10 plies.

11 (C) Subsections (a)(3) and (b) shall not apply to

12 exports prohibited or restricted under this subsection.

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

14 commodities and technology described in subpara15 graph (B)(iii). The Secretary shall review the list of

16 items on that list at least annually. At the conclusion

17 of the review, the Secretary shall determine whether

18 to remove items from the list, change the specifica19 tions of items on the list, or add items to the list, in

20 order to ensure that the items on the list meet the re21 quirements of subparagraph (B)(iii).

22 (ii) The procedures set forth in subparagraphs

23 (A) and (C) of section 105(g)(3) shall apply to re24 views under clause (i) of the list of items described in

25 subparagraph (B)(iii) to the same extent as such sec-
48

•HR 361 RH

1 tion applies to reviews of the control list under section

2 105(g).

3 (2) NOTIFICATION OF CONGRESS OF LICENSES

4 ISSUED.—The Secretary and the Secretary of State

5 shall notify the Speaker of the House of Representa6 tives and the Committee on Banking, Housing, and

7 Urban Affairs and the Committee on Foreign Rela8 tions of the Senate at least 30 days before issuing any

9 license under this title for exports to a country the

10 government of which the Secretary of State has deter11 mined has repeatedly provided support for acts of

12 international terrorism.

13 (3) PUBLICATION OF DETERMINATIONS.—Each

14 determination of the Secretary of State under para15 graph (1)(A) shall be published in the Federal Reg16 ister.

17 (4) RESCISSION OF DETERMINATIONS.—A deter18 mination made by the Secretary of State under para19 graph (1)(A) may not be rescinded unless the Presi20 dent submits to the Speaker of the House of Rep21 resentatives and the chairman of the Committee on

22 Banking, Housing, and Urban Affairs and the chair23 man of the Committee on Foreign Relations of the

24 Senate—
49

•HR 361 RH

1 (A) before the proposed rescission would

2 take effect, a report certifying that—

3 (i) there has been a fundamental

4 change in the leadership and policies of the

5 government of the country concerned;

6 (ii) that government is not supporting

7 acts of international terrorism; and

8 (iii) that government has provided as9 surances that it will not support acts of

10 international terrorism in the future; or

11 (B) at least 45 days before the proposed re12 scission would take effect, a report justifying the

13 rescission and certifying that—

14 (i) the government concerned has not

15 provided any support for international ter16 rorism during the preceding 6-month pe17 riod; and

18 (ii) the government concerned has pro19 vided assurances that it will not support

20 acts of international terrorism in the future.

21 (5) WAIVER OF PROHIBITIONS.—The President

22 may waive the prohibitions contained in paragraph

23 (1)(A) with respect to a specific transaction if—
50

•HR 361 RH

1 (A) the President determines that the trans2 action is essential to the national security inter3 ests of the United States; and

4 (B) not less than 30 days prior to the pro5 posed transaction, the President—

6 (i) consults with the Committee on

7 International Relations of the House of

8 Representatives and the Committee on

9 Banking, Housing, and Urban Affairs of

10 the Senate regarding the proposed trans11 action; and

12 (ii) submits to the Speaker of the

13 House of Representatives and the chairman

14 of the Committee on Banking, Housing, and

15 Urban Affairs of the Senate a report con16 taining—

17 (I) the name of any country in18 volved in the proposed transaction, the

19 identity of any recipient of the items

20 to be provided pursuant to the pro21 posed transaction, and the anticipated

22 use of those items;

23 (II) a description of the items in24 volved in the proposed transaction (in25 cluding their market value) and the ac-
51

•HR 361 RH

1 tual sale price at each step in the

2 transaction;

3 (III) the reasons why the proposed

4 transaction is essential to the national

5 security interests of the United States

6 and the justification for the proposed

7 transaction;

8 (IV) the date on which the pro9 posed transaction is expected to occur;

10 and

11 (V) the name of any foreign gov12 ernments involved in the proposed

13 transaction.

14 To the extent possible, the information specified in

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

16 unclassified form.

17 (6) MULTILATERAL REGIMES.—The Secretary of

18 State, in consultation with appropriate departments

19 and agencies, shall seek support by other countries

20 and by effective multilateral control regimes of con21 trols imposed by this subsection.

22 (7) EFFECT ON OTHER LAWS.—The provisions of

23 this subsection do not affect any other provision of

24 law to the extent such other provision imposes greater

25 restrictions on exports to any country the government
52

•HR 361 RH

1 of which the Secretary of State has determined has re2 peatedly provided support for acts of international

3 terrorism than are imposed under this subsection.

4 (j) CRIME CONTROL INSTRUMENTS.—

5 (1) LICENSE REQUIRED.—Crime control and de6 tection instruments and equipment shall be approved

7 for export by the Secretary only pursuant to an ex8 port license. Paragraphs (3)(A) and (4) of subsection

9 (a) shall not apply to the export controls imposed by

10 this subsection.

11 (2) CONCURRENCE OF SECRETARY OF STATE.—

12 (A) ITEMS ON CONTROL INDEX.—Any deter13 mination of the Secretary of what commodities

14 or technology shall be included on the control

15 index as a result of the export restrictions im16 posed by this subsection shall be made with the

17 concurrence of the Secretary of State.

18 (B) ACTION ON LICENSE APPLICATION.—

19 Any determination of the Secretary to approve

20 or deny an export license application to export

21 crime control or detection instruments or equip22 ment shall be made with the concurrence of the

23 Secretary of State.

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

25 State does not agree with the Secretary with respect
53

•HR 361 RH

1 to any determination under paragraph (2), the Sec2 retary of State shall refer the matter to the President

3 for resolution.

4 (4) EXCEPTIONS.—The provisions of this sub5 section shall not apply with respect to exports to

6 countries which are members of the North Atlantic

7 Treaty Organization or to Japan, Australia, or New

8 Zealand, or to such other countries as the President

9 shall designate consistent with the purposes of this

10 subsection and section 502B of the Foreign Assistance

11 Act of 1961.

12 (k) SPARE PARTS.—At the same time as the President

13 imposes or expands export controls under this section, the

14 President shall determine whether such export controls will

15 apply to replacement parts or parts in commodities subject

16 to such export controls.

17 (l) EFFECT ON OTHER LAWS.—None of the prohibi18 tions contained in this section shall apply to any trans19 action subject to the reporting requirements of title V of the

20 National Security Act of 1947.

21 SEC. 107. SHORT SUPPLY CONTROLS.

22 (a) AUTHORITY.—

23 (1) IN GENERAL.—In order to carry out the pol24 icy set forth in section 103(4), the President may pro25 hibit or curtail the export of any commodities subject
54

•HR 361 RH

1 to the jurisdiction of the United States or exported by

2 any person subject to the jurisdiction of the United

3 States. In curtailing exports to carry out the policy

4 set forth in section 103(4), the President shall allocate

5 a portion of export licenses on the basis of factors

6 other than a prior history of exportation. Such factors

7 shall include the extent to which a country engages in

8 equitable trade practices with respect to United States

9 commodities and treats the United States equitably in

10 times of short supply.

11 (2) PUBLIC PARTICIPATION.—Upon imposing

12 quantitative restrictions on exports of any commod13 ities to carry out the policy set forth in section

14 103(4), the Secretary shall include in a notice pub15 lished in the Federal Register with respect to such re16 strictions an invitation to all interested parties to

17 submit written comments within 15 days after the

18 date of publication on the impact of such restrictions

19 and the method of licensing used to implement them.

20 (3) LICENSE FEES.—In imposing export controls

21 under this section, the President’s authority shall in22 clude, but not be limited to, the imposition of export

23 license fees.

24 (b) MONITORING.—
55

•HR 361 RH

1 (1) IN GENERAL.—In order to carry out the pol2 icy set forth in section 103(4), the Secretary shall

3 monitor exports, and contracts for exports, of any

4 commodity when the volume of such exports in rela5 tion to domestic supply contributes, or may contrib6 ute, to an increase in domestic prices or a domestic

7 shortage, and such price increase or shortage has, or

8 may have, a serious adverse impact on the economy

9 or any sector thereof. Any such monitoring shall com10 mence at a time adequate to assure that the monitor11 ing will result in a data base sufficient to enable poli12 cies to be developed, in accordance with section

13 103(4), to mitigate a short supply situation or serious

14 inflationary price rise or, if export controls are need15 ed, to permit imposition of such controls in a timely

16 manner. Information which the Secretary requires to

17 be furnished in effecting such monitoring shall be con18 fidential, except as provided in paragraph (2).

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

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

21 practicable, be aggregated and included in weekly re22 ports setting forth, with respect to each item mon23 itored, actual and anticipated exports, the destination

24 by country, and the domestic and worldwide price,

25 supply, and demand. Such reports may be made
56

•HR 361 RH

1 monthly if the Secretary determines that there is in2 sufficient information to justify weekly reports.

3 (3) CONSULTATION WITH SECRETARY OF EN4 ERGY.—The Secretary shall consult with the Sec5 retary of Energy to determine whether monitoring or

6 export controls under this section are warranted with

7 respect to exports of facilities, machinery, or equip8 ment normally and principally used, or intended to

9 be used, in the production, conversion, or transpor10 tation of fuels and energy (except nuclear energy), in11 cluding, but not limited to—

12 (A) drilling rigs, platforms, and equipment;

13 (B) petroleum refineries, and natural gas

14 processing, liquefaction, and gasification plants;

15 (C) facilities for production of synthetic

16 natural gas or synthetic crude oil;

17 (D) oil and gas pipelines, pumping sta18 tions, and associated equipment; and

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

20 and other fuels.

21 (c) PETITIONS FOR MONITORING OR CONTROLS OF

22 METALLIC MATERIALS.—

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

24 trade association, firm, or certified or recognized

25 union or group of workers, that is representative of
57

•HR 361 RH

1 an industry or a substantial segment of an industry

2 that processes metallic materials capable of being re3 cycled may transmit a written petition to the Sec4 retary requesting the monitoring of exports or the im5 position of export controls, or both, with respect to

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

7 set forth in section 103(4).

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

9 Secretary shall prescribe and shall contain informa10 tion in support of the action requested. The petition

11 shall include any information reasonably available to

12 the petitioner indicating that each of the criteria set

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

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

15 after receipt of any petition described in paragraph

16 (1), the Secretary shall publish a notice in the Fed17 eral Register. The notice shall—

18 (A) include the name of the material that is

19 the subject to the petition;

20 (B) include the schedule B number of the

21 material as set forth in the Statistical Classifica22 tion of Domestic and Foreign Commodities Ex23 ported from the United States;

24 (C) indicate whether the petition is request25 ing that controls or monitoring, or both, be im-
58

•HR 361 RH

1 posed with respect to the exportation of such ma2 terial; and

3 (D) provide that interested persons shall

4 have a period of 30 days beginning on the date

5 on which the notice is published to submit to the

6 Secretary written data, views, or arguments,

7 with or without opportunity for oral presen8 tation, with respect to the matter involved.

9 At the request of the petitioner or any other entity de10 scribed in paragraph (1)(A) with respect to the mate11 rial which is the subject of the petition, or at the re12 quest of any entity representative of producers or ex13 porters of such material, the Secretary shall conduct

14 public hearings with respect to the subject of the peti15 tion, in which case the 30-day period may be ex16 tended to 45 days.

17 (3) DETERMINATION OF MONITORING OR CON18 TROLS.—(A) Within 45 days after the end of the 30-

19 or 45-day period described in paragraph (2), as the

20 case may be, the Secretary shall determine whether to

21 impose monitoring or controls, or both, on the export

22 of the material that is the subject of the petition in

23 order to carry out the policy set forth in section

24 103(4). In making such determination, the Secretary

25 shall determine whether—
59

•HR 361 RH

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

2 relation to a specific period of time, in exports

3 of such material in relation to domestic supply

4 and demand;

5 (ii) there has been a significant increase in

6 domestic price of such material or a domestic

7 shortage of such material relative to demand;

8 (iii) exports of such material are as impor9 tant as any other cause of a domestic price in10 crease or shortage relative to demand found

11 under clause (ii);

12 (iv) a domestic price increase or shortage

13 relative to demand found under clause (ii) has

14 significantly adversely affected or may signifi15 cantly adversely affect the national economy or

16 any sector thereof, including a domestic indus17 try; and

18 (v) monitoring or controls, or both, are nec19 essary in order to carry out the policy set forth

20 in section 103(4).

21 (B) The Secretary shall publish in the Federal

22 Register a detailed statement of the reasons for the

23 Secretary’s determination under subparagraph (A) of

24 whether to impose monitoring or controls, or both, in-
60

•HR 361 RH

1 cluding the findings of fact in support of that deter2 mination.

3 (4) PUBLICATION OF REGULATIONS.—Within 15

4 days after making a determination under paragraph

5 (3) to impose monitoring or controls on the export of

6 a material, the Secretary shall publish in the Federal

7 Register proposed regulations with respect to such

8 monitoring or controls. Within 30 days after the pub9 lication of such proposed regulations, and after con10 sidering any public comments on the proposed regula11 tions, the Secretary shall publish and implement final

12 regulations with respect to such monitoring or con13 trols.

14 (5) CONSOLIDATION OF PETITIONS.—For pur15 poses of publishing notices in the Federal Register

16 and scheduling public hearings pursuant to this sub17 section, the Secretary may consolidate petitions, and

18 responses to such petitions, which involve the same or

19 related materials.

20 (6) SUBSEQUENT PETITIONS ON SAME MATE21 RIAL.—If a petition with respect to a particular ma22 terial or group of materials has been considered in ac23 cordance with all the procedures described in this sub24 section, the Secretary may determine, in the absence

25 of significantly changed circumstances, that any other
61

•HR 361 RH

1 petition with respect to the same material or group

2 of materials which is filed within 6 months after the

3 consideration of the prior petition has been completed

4 does not merit complete consideration under this sub5 section.

6 (7) PRECEDENCE OF PROCEDURES OVER OTHER

7 REVIEWS.—The procedures and time limits set forth

8 in this subsection with respect to a petition filed

9 under this subsection shall take precedence over any

10 review undertaken at the initiative of the Secretary

11 with respect to the same subject as that of the peti12 tion.

13 (8) TEMPORARY CONTROLS.—The Secretary may

14 impose monitoring or controls, on a temporary basis,

15 on the export of a metallic material after a petition

16 is filed under paragraph (1)(A) with respect to that

17 material but before the Secretary makes a determina18 tion under paragraph (3) with respect to that mate19 rial only if—

20 (A) the failure to take such temporary ac21 tions would result in irreparable harm to the en22 tity filing the petition, or to the national econ23 omy or segment thereof, including a domestic in24 dustry, and
62

•HR 361 RH

1 (B) the Secretary considers such action to

2 be necessary to carry out the policy set forth in

3 section 103(4).

4 (9) OTHER AUTHORITY NOT AFFECTED.—The

5 authority under this subsection shall not be construed

6 to affect the authority of the Secretary under any

7 other provision of this title, except that if the Sec8 retary determines, on the Secretary’s own initiative,

9 to impose monitoring or controls, or both, on the ex10 port of metallic materials capable of being recycled,

11 under the authority of this section, the Secretary shall

12 publish the reasons for such action in accordance with

13 paragraphs (3) (A) and (B).

14 (10) SUBMISSION AND CONSIDERATION OF ADDI15 TIONAL INFORMATION.—Nothing contained in this

16 subsection shall be construed to preclude submission

17 on a confidential basis to the Secretary of informa18 tion relevant to a decision to impose or remove mon19 itoring or controls under the authority of this title, or

20 to preclude consideration of such information by the

21 Secretary in reaching decisions required under this

22 subsection. The provisions of this paragraph shall not

23 be construed to affect the applicability of section

24 552(b) of title 5, United States Code.

25 (d) AGRICULTURAL COMMODITIES.—
63

•HR 361 RH

1 (1) APPROVAL OF CONTROLS BY SECRETARY OF

2 AGRICULTURE.—The authority conferred by this sec3 tion shall not be exercised with respect to any agricul4 tural commodity, including fats and oils, forest prod5 ucts, or animal hides or skins, without the approval

6 of the Secretary of Agriculture. The Secretary of Agri7 culture shall not approve the exercise of such author8 ity with respect to any such commodity during any

9 period for which the supply of such commodity is de10 termined by the Secretary of Agriculture to be in ex11 cess of the requirements of the domestic economy, ex12 cept to the extent the President determines that the

13 controls on such agricultural commodities are also

14 imposed under section 106. The Secretary of Agri15 culture shall, by exercising the authority which the

16 Secretary of Agriculture has under other applicable

17 provisions of law, collect data with respect to export

18 sales of animal hides and skins.

19 (2) PROTECTION OF STORED COMMODITIES FROM

20 FUTURE CONTROLS.—Upon approval of the Secretary,

21 in consultation with the Secretary of Agriculture, ag22 ricultural commodities purchased by or for use in a

23 foreign country may remain in the United States for

24 export at a later date free from any quantitative lim25 itations on export which may be imposed to carry out
64

•HR 361 RH

1 the policy set forth in section 103(4) subsequent to

2 such approval. The Secretary may not grant such ap3 proval unless the Secretary receives adequate assur4 ance and, in conjunction with the Secretary of Agri5 culture, finds—

6 (A) that such commodities will eventually

7 be exported,

8 (B) that neither the sale nor export thereof

9 will result in an excessive drain of scarce mate10 rial and have a serious domestic inflationary

11 impact,

12 (C) that storage of such commodities in the

13 United States will not unduly limit the space

14 available for storage of domestically owned com15 modities, and

16 (D) that the purpose of such storage is to es17 tablish a reserve of such commodities for later

18 use, not including resale to or use by another

19 country.

20 The Secretary may issue such regulations as may be

21 necessary to carry out this paragraph.

22 (3) PROCEDURES FOR IMPOSING CONTROLS.—

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

24 agricultural commodity under section 106 or this sec25 tion, the President shall immediately transmit a re-
65

•HR 361 RH

1 port on such action to the Congress, setting forth the

2 reasons for the controls in detail and specifying the

3 period of time, which may not exceed 1 year, that the

4 controls are proposed to be in effect. If the Congress,

5 within 60 days after the date of the receipt of the re6 port, adopts a joint resolution pursuant to paragraph

7 (4) approving the imposition of the export controls,

8 then such controls shall remain in effect for the period

9 specified in the report, or until terminated by the

10 President, whichever occurs first. If the Congress,

11 within 60 days after the date of its receipt of such re12 port, fails to adopt a joint resolution approving such

13 controls, then such controls shall cease to be effective

14 upon the expiration of that 60-day period.

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

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

17 (i) which are extended under this title if the

18 controls, when imposed, were approved by the

19 Congress under subparagraph (A) and para20 graph (4); or

21 (ii) which are imposed with respect to a

22 country as part of the prohibition or curtailment

23 of all exports to that country.

24 (4) EXPEDITED PROCEDURES.—(A) For pur25 poses of this paragraph, the term ‘‘joint resolution’’
66

•HR 361 RH

1 means only a joint resolution the matter after the re2 solving clause of which is as follows: ‘‘That pursuant

3 to section 107(d)(3) of the Export Administration Act

4 of 1996, the President may impose export controls as

5 specified in the report submitted to the Congress on

6 lll.’’, with the blank space being filled with the

7 appropriate date.

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

9 to the House of Representatives and the Senate under

10 paragraph (3), a joint resolution with respect to the

11 export controls specified in such report shall be intro12 duced (by request) in the House by the chairman of

13 the Committee on International Relations, for the

14 chairman and the ranking minority member of the

15 Committee, or by Members of the House designated by

16 the chairman and ranking minority member; and

17 shall be introduced (by request) in the Senate by the

18 majority leader of the Senate, for the majority leader

19 and the minority leader of the Senate, or by Members

20 of the Senate designated by the majority leader and

21 minority leader of the Senate. If either House is not

22 in session on the day on which such a report is sub23 mitted, the joint resolution shall be introduced in that

24 House, as provided in the preceding sentence, on the

25 first day thereafter on which that House is in session.
67

•HR 361 RH

1 (C) If the committee of either House to which a

2 joint resolution has been referred has not reported the

3 joint resolution at the end of 30 days after its refer4 ral, the committee shall be discharged from further

5 consideration of the resolution or of any other joint

6 resolution introduced with respect to the same matter.

7 (D) A joint resolution under this paragraph

8 shall be considered in the Senate in accordance with

9 the provisions of section 601(b)(4) of the Inter10 national Security Assistance and Arms Export Con11 trol Act of 1976. For the purpose of expediting the

12 consideration and passage of joint resolutions re13 ported or discharged pursuant to the provisions of

14 this paragraph, it shall be in order for the Committee

15 on Rules of the House of Representatives to present

16 for consideration a resolution of the House of Rep17 resentatives providing procedures for the immediate

18 consideration of a joint resolution under this para19 graph which may be similar, if applicable, to the pro20 cedure set forth in section 601(b)(4) of the Inter21 national Security Assistance and Arms Export Con22 trol Act of 1976.

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

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

25 of a joint resolution of that House, that House re-
68

•HR 361 RH

1 ceives a resolution with respect to the same matter

2 from the other House, then—

3 (i) the procedure in that House shall be the

4 same as if no joint resolution has been received

5 from the other House; but

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

7 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 ses13 sion because of an adjournment of more than 3 days

14 to a day certain or because of an adjournment of the

15 Congress sine die.

16 (e) BARTER AGREEMENTS.—

17 (1) EXEMPTION FROM CONTROLS.—The expor18 tation pursuant to a barter agreement of any com19 modities which may lawfully be exported from the

20 United States, for any commodities which may law21 fully be imported into the United States, may be ex22 empted, in accordance with paragraph (2), from any

23 quantitative limitation on exports (other than any re24 porting requirement) imposed to carry out the policy

25 set forth in section 103(4).
69

•HR 361 RH

1 (2) CRITERIA FOR EXEMPTION.—The Secretary

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

3 Secretary finds, after consultation with the appro4 priate department or agency of the United States,

5 that—

6 (A) for the period during which the barter

7 agreement is to be performed—

8 (i) the average annual quantity of the

9 commodities to be exported pursuant to the

10 barter agreement will not be required to sat11 isfy the average amount of such commod12 ities estimated to be required annually by

13 the domestic economy and will be surplus

14 thereto; and

15 (ii) the average annual quantity of the

16 commodities to be imported will be more

17 than the average amount of such commod18 ities estimated to be required annually to

19 supplement domestic production; and

20 (B) the parties to such barter agreement

21 have demonstrated adequately that they intend,

22 and have the capacity, to perform such barter

23 agreement.

24 (3) DEFINITION.—For purposes of this sub25 section, the term ‘‘barter agreement’’ means any
70

•HR 361 RH

1 agreement which is made for the exchange, without

2 monetary consideration, of any commodities produced

3 in the United States for any commodities produced

4 outside of the United States.

5 (4) APPLICABILITY.—This subsection shall apply

6 only with respect to barter agreements entered into

7 after September 30, 1979.

8 (f) EFFECT OF CONTROLS ON EXISTING CONTRACTS.—

9 (1) WESTERN RED CEDAR.—Any export controls

10 imposed under section 7(i) of the Export Administra11 tion Act of 1979 or this section shall not affect any

12 contract to harvest unprocessed western red cedar

13 from State lands which was entered into before Octo14 ber 1, 1979, and the performance of which would

15 make the red cedar available for export.

16 (2) OTHER CONTROLS.—Any export controls im17 posed under this section on any agricultural commod18 ity (including fats, oils, forest products, and animal

19 hides and skins), or on any fishery product, shall not

20 affect any contract to export entered into before the

21 date on which such controls are imposed. For pur22 poses of this paragraph, the term ‘‘contract to export’’

23 includes, but is not limited to, an export sales agree24 ment and an agreement to invest in an enterprise
71

•HR 361 RH

1 which involves the export of commodities or tech2 nology.

3 (g) OIL EXPORTS FOR USE BY UNITED STATES MILI4 TARY FACILITIES.—For purposes of this section, and for

5 purposes of any export controls imposed under this title,

6 shipments of crude oil, refined petroleum products, or par7 tially refined petroleum products from the United States

8 for use by the Department of Defense or United States-sup9 ported installations or facilities shall not be considered to

10 be exports.

11 SEC. 108. FOREIGN BOYCOTTS.

12 (a) PROHIBITIONS AND EXCEPTIONS.—

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

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

15 issue regulations prohibiting any United States per16 son, with respect to that person’s activities in the

17 interstate or foreign commerce of the United States,

18 from taking or knowingly agreeing to take any of the

19 following actions with intent to comply with, further,

20 or support any boycott fostered or imposed by a for21 eign country against a country which is friendly to

22 the United States and which is not itself the object of

23 any form of boycott pursuant to United States law or

24 regulation:
72

•HR 361 RH

1 (A) Refusing, or requiring any other person

2 to refuse, to do business with or in the boycotted

3 country, with any business concern organized

4 under the laws of the boycotted country, with

5 any national or resident of the boycotted coun6 try, or with any other person, pursuant to an

7 agreement with, a requirement of, or a request

8 from or on behalf of the boycotting country. The

9 mere absence of a business relationship with or

10 in the boycotted country, with any business con11 cern organized under the laws of the boycotted

12 country, with any national or resident of the

13 boycotted country, or with any other person, does

14 not indicate the existence of the intent required

15 to establish a violation of regulations issued to

16 carry out this subparagraph.

17 (B) Refusing, or requiring any other person

18 to refuse, to employ or otherwise discriminating

19 against any United States person on the basis of

20 the race, religion, sex, or national origin of that

21 person or of any owner, officer, director, or em22 ployee of such person.

23 (C) Furnishing information with respect to

24 the race, religion, sex, or national origin of any
73

•HR 361 RH

1 United States person or of any owner, officer,

2 director, or employee of such person.

3 (D) Furnishing information about whether

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

5 business relationship (including a relationship

6 by way of sale, purchase, legal or commercial

7 representation, shipping or other transport, in8 surance, investment, or supply) with or in the

9 boycotted country, with any business concern or10 ganized under the laws of the boycotted country,

11 with any national or resident of the boycotted

12 country, or with any other person that is known

13 or believed to be restricted from having any busi14 ness relationship with or in the boycotting coun15 try. Nothing in this paragraph shall prohibit the

16 furnishing of normal business information in a

17 commercial context as defined by the Secretary.

18 (E) Furnishing information about whether

19 any person is a member of, has made a contribu20 tion to, or is otherwise associated with or in21 volved in the activities of any charitable or fra22 ternal organization which supports the boycotted

23 country.

24 (F) Paying, honoring, confirming, or other25 wise implementing a letter of credit which con-
74

•HR 361 RH

1 tains any condition or requirement compliance

2 with which is prohibited by regulations issued

3 pursuant to this paragraph, and no United

4 States person shall, as a result of the application

5 of this paragraph, be obligated to pay or other6 wise honor or implement such letter of credit.

7 (2) EXCEPTIONS.—Regulations issued pursuant

8 to paragraph (1) shall provide exceptions for—

9 (A) complying or agreeing to comply with

10 requirements—

11 (i) prohibiting the import of commod12 ities or services from the boycotted country

13 or commodities produced or services pro14 vided by any business concern organized

15 under the laws of the boycotted country or

16 by nationals or residents of the boycotted

17 country; or

18 (ii) prohibiting the shipment of com19 modities to the boycotting country on a car20 rier of the boycotted country, or by a route

21 other than that prescribed by the boycotting

22 country or the recipient of the shipment;

23 (B) complying or agreeing to comply with

24 import and shipping document requirements

25 with respect to the country of origin, the name
75

•HR 361 RH

1 of the carrier and route of shipment, the name

2 of the supplier of the shipment, or the name of

3 the provider of other services, except that no in4 formation knowingly furnished or conveyed in

5 response to such requirements may be stated in

6 negative, blacklisting, or similar exclusionary

7 terms, other than with respect to carriers or

8 route of shipment as may be permitted by such

9 regulations in order to comply with precaution10 ary requirements protecting against war risks

11 and confiscation;

12 (C) complying or agreeing to comply in the

13 normal course of business with the unilateral

14 and specific selection by a boycotting country, or

15 national or resident thereof, of carriers, insurers,

16 suppliers of services to be performed within the

17 boycotting country, or specific commodities

18 which, in the normal course of business, are

19 identifiable by source when imported into the

20 boycotting country;

21 (D) complying or agreeing to comply with

22 export requirements of the boycotting country re23 lating to shipments or transshipment of exports

24 to the boycotted country, to any business concern

25 of or organized under the laws of the boycotted
76

•HR 361 RH

1 country, or to any national or resident of the

2 boycotted country;

3 (E) compliance by an individual or agree4 ment by an individual to comply with the immi5 gration or passport requirements of any country

6 with respect to such individual or any member

7 of such individual’s family or with requests for

8 information regarding requirements of employ9 ment of such individual within the boycotting

10 country; and

11 (F) compliance by a United States person

12 resident in a foreign country or agreement by

13 such person to comply with the laws of the coun14 try with respect to such person’s activities exclu15 sively therein, and such regulations may contain

16 exceptions for such resident complying with the

17 laws or regulations of the foreign country govern18 ing imports into such country of trademarked,

19 trade named, or similarly specifically identifi20 able products, or components of products for such

21 person’s own use, including the performance of

22 contractual services within that country, as may

23 be defined by such regulations.

24 (3) LIMITATION ON EXCEPTIONS.—Regulations

25 issued pursuant to paragraphs (2)(C) and (2)(F)
77

•HR 361 RH

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

2 and (1)(C).

3 (4) ANTITRUST AND CIVIL RIGHTS LAWS NOT AF4 FECTED.—Nothing in the subsection may be construed

5 to supersede or limit the operation of the antitrust or

6 civil rights laws of the United States.

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

8 transaction or activity undertaken, by or through a

9 United States person or any other person, with intent

10 to evade the provisions of this section as implemented

11 by the regulations issued pursuant to this subsection,

12 and such regulations shall expressly provide that the

13 exceptions set forth in paragraph (2) shall not permit

14 activities or agreements (expressed or implied by a

15 course of conduct, including a pattern of responses)

16 otherwise prohibited, which are not within the intent

17 of such exceptions.

18 (b) ADDITIONAL REGULATIONS AND REPORTS.—

19 (1) REGULATIONS.—In addition to the regula20 tions issued pursuant to subsection (a), regulations is21 sued under section 106 shall implement the policies

22 set forth in section 103(9).

23 (2) REPORTS BY UNITED STATES PERSONS.—

24 Such regulations shall require that any United States

25 person receiving a request for the furnishing of infor-
78

•HR 361 RH

1 mation, the entering into or implementing of agree2 ments, or the taking of any other action referred to

3 in section 103(9) shall report that fact to the Sec4 retary, together with such other information concern5 ing such request as the Secretary may require, for

6 such action as the Secretary considers appropriate for

7 carrying out the policies of that section. Such person

8 shall also report to the Secretary whether such person

9 intends to comply and whether such person has com10 plied with such request. Any report filed pursuant to

11 this paragraph shall be made available promptly for

12 public inspection and copying, except that informa13 tion regarding the quantity, description, and value of

14 any commodities or technology to which such report

15 relates may be kept confidential if the Secretary de16 termines that disclosure thereof would place the Unit17 ed States person involved at a competitive disadvan18 tage. The Secretary shall periodically transmit sum19 maries of the information contained in such reports

20 to the Secretary of State for such action as the Sec21 retary of State, in consultation with the Secretary,

22 considers appropriate for carrying out the policies set

23 forth in section 103(9).
79

•HR 361 RH

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

2 the regulations issued under this section shall preempt any

3 law, rule, or regulation which—

4 (1) is a law, rule, or regulation of any of the sev5 eral States or the District of Columbia, or any of the

6 territories or possessions of the United States, or of

7 any governmental subdivision thereof; and

8 (2) pertains to participation in, compliance

9 with, implementation of, or the furnishing of infor10 mation regarding restrictive trade practices or boy11 cotts fostered or imposed by foreign countries against

12 other countries.

13 SEC. 109. PROCEDURES FOR PROCESSING EXPORT LICENSE

14 APPLICATIONS; OTHER INQUIRIES.

15 (a) PRIMARY RESPONSIBILITY OF THE SECRETARY.—

16 (1) IN GENERAL.—All export license applications

17 required under this title shall be submitted by the ap18 plicant to the Secretary. Subject to the procedures

19 provided in this section—

20 (A) if referral of an application to other de21 partments or agencies for review is not required,

22 the Secretary shall, within 9 days after receiving

23 the application, issue a license or notify the ap24 plicant of the intent to deny the application; or
80

•HR 361 RH

1 (B) if referral of the application to other de2 partments or agencies for review is required, the

3 Secretary shall, within 30 days after referral of

4 any such application to other departments or

5 agencies—

6 (i) issue a license;

7 (ii) notify the applicant of the intent

8 to deny the application; or

9 (iii) ensure that the application is sub10 ject to the interagency resolution process set

11 forth in subsection (d).

12 (2) RECOMMENDATIONS OF OTHER AGENCIES.—

13 The Secretary shall seek information and rec14 ommendations from the Department of Defense and

15 other departments and agencies of the United States

16 that are identified by the President as being con17 cerned with factors having an important bearing on

18 exports administered under this title. Such depart19 ments and agencies shall cooperate fully and prompt20 ly in rendering information and recommendations.

21 (3) PROCEDURES.—In guidance and regulations

22 that implement this section, the Secretary shall de23 scribe the procedures required by this section, the re24 sponsibilities of the Secretary and of other depart25 ments and agencies in reviewing applications, the
81

•HR 361 RH

1 rights of the applicant, and other relevant matters af2 fecting the review of license applications.

3 (4) CALCULATION OF PROCESSING TIMES.—In

4 calculating the processing times set forth in this sec5 tion, the Secretary shall use calendar days, except

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

7 weekend or holiday, that action shall be taken no

8 later than the following business day.

9 (5) RELIABILITY OF PARTIES.—In reviewing ap10 plications for export licenses, the Secretary may in

11 each case consider the reliability of the parties to the

12 proposed export. In making such an evaluation, the

13 Secretary may consider all sources of information, in14 cluding results of other United States Government ac15 tions, such as actions by the Committee on Foreign

16 Investment in the United States, investigations of di17 versions from authorized end uses or end users, and

18 intelligence information, except that the consideration

19 of such information in connection with the evaluation

20 of the reliability of parties shall not authorize the di21 rect or indirect disclosure of classified information or

22 sources and methods of gathering classified informa23 tion and shall not confer a right on private parties

24 to have access to classified information.

25 (b) INITIAL SCREENING.—
82

•HR 361 RH

1 (1) UPON RECEIPT OF APPLICATION.—Upon re2 ceipt of an export license application, the Secretary

3 shall enter and maintain in the records of the Depart4 ment of Commerce information regarding the receipt

5 and status of the application.

6 (2) INITIAL PROCEDURES.—Promptly upon re7 ceiving any license application, the Secretary shall—

8 (A) contact the applicant if the application

9 is improperly completed or if additional infor10 mation is required, and hold the application for

11 a reasonable time while the applicant provides

12 the necessary corrections or information, and

13 such time shall not be included in calculating the

14 time periods prescribed in this section;

15 (B) refer the application, including all in16 formation submitted by the applicant, and all

17 necessary recommendations and analyses by the

18 Secretary to the Department of Defense and

19 other departments and agencies identified by the

20 President under subsection (a)(2); and

21 (C) ensure that the classification stated on

22 the application for the export items is correct, re23 turn the application if a license is not required,

24 and, if referral to other departments or agencies

25 is not required, grant the application or notify
83

•HR 361 RH

1 the applicant of the Secretary’s intent to deny

2 the application.

3 In the event that the head of a department or agency

4 determines that certain types of applications need not

5 be referred to the department or agency, such depart6 ment or agency head shall notify the Secretary of the

7 specific types of such applications that the depart8 ment or agency does not wish to review.

9 (c) ACTION BY OTHER DEPARTMENTS AND AGEN10 CIES.—

11 (1) REFERRAL TO OTHER AGENCIES.—The Sec12 retary shall promptly refer license applications to de13 partments and agencies under subsection (b) to make

14 recommendations and provide information to the Sec15 retary.

16 (2) RESPONSIBILITY OF REFERRAL AGENCIES.—

17 The Department of Defense and other reviewing de18 partments and agencies shall organize their resources

19 and units to plan for the prompt and expeditious in20 ternal dissemination of export license applications, if

21 necessary, so as to avoid delays in responding to the

22 referral of applications.

23 (3) ADDITIONAL INFORMATION REQUESTS.—

24 Each department or agency to which a license appli25 cation is referred shall specify to the Secretary any
84

•HR 361 RH

1 information that is not in the application that would

2 be required for the department or agency to make a

3 determination with respect to the application, and the

4 Secretary shall promptly request such information

5 from the applicant. The time that may elapse between

6 the date the information is requested by that depart7 ment or agency and the date the information is re8 ceived by that department or agency shall not be in9 cluded in calculating the time periods prescribed in

10 this section.

11 (4) TIME PERIOD FOR ACTION BY REFERRAL DE12 PARTMENTS AND AGENCIES.—Within 30 days after

13 receiving a referral of an application under this sec14 tion, the department or agency concerned shall pro15 vide the Secretary with a recommendation either to

16 approve the license or to deny the license. A rec17 ommendation that the Secretary deny a license shall

18 include a statement of reasons for the recommenda19 tion that are consistent with the provisions of this

20 title, and shall cite both the specific statutory and the

21 regulatory basis for the recommendation. A depart22 ment or agency that fails to provide a recommenda23 tion in accordance with this paragraph within that

24 30-day period shall be deemed to have no objection to

25 the decision of the Secretary on the application.
85

•HR 361 RH

1 (d) INTERAGENCY RESOLUTION.—

2 (1) INITIAL RESOLUTION.—The Secretary shall

3 establish, select the chairperson of, and determine pro4 cedures for an interagency committee to review ini5 tially all license applications on which the depart6 ments and agencies reviewing the applications under

7 this section are not in agreement. The chairperson of

8 such committee shall consider the recommendations of

9 the departments and agencies reviewing a particular

10 application and inform them of his or her decision on

11 the application, which may include a decision that

12 the particular application requires further consider13 ation under the procedures established under para14 graph (2). An application may also be referred to fur15 ther consideration under the procedures established

16 under paragraph (2) if an appeal from the chair17 person’s decision is made in writing by an official of

18 the department or agency concerned who is appointed

19 by the President by and with the advice and consent

20 of the Senate, or an officer properly acting in such

21 capacity.

22 (2) FURTHER RESOLUTION.—The President shall

23 establish a process for the further review and deter24 mination of export license applications pursuant to a

25 decision by the chairperson under paragraph (1) or
86

•HR 361 RH

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

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

4 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 DE19 NIED.—In cases where the Secretary has determined that

20 an application should be denied, the applicant shall be in21 formed in writing of—

22 (1) the determination to deny;

23 (2) the specific statutory and regulatory bases for

24 the proposed denial;
87

•HR 361 RH

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 in

6 a position to discuss modifications or restrictions

7 with the applicant and the specific statutory and reg8 ulatory bases for imposing such modifications or re9 strictions;

10 (4) to the extent consistent with the national se11 curity 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 re16 spond to the determination before the license applica17 tion 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 mutually

24 agree.
88

•HR 361 RH

1 (2) PRELICENSE CHECKS.—A prelicense check

2 that may be required to establish the identity and re3 liability of the recipient of items controlled under this

4 title, if—

5 (A) the need for the prelicense check is de6 termined by the Secretary, or by another depart7 ment or agency if the request for the prelicense

8 check is made by such department or agency;

9 (B) the request for the prelicense check is

10 sent by the Secretary within 5 days after the de11 termination that the prelicense check is required;

12 and

13 (C) the analysis of the result of the

14 prelicense check is completed by the Secretary

15 within 5 days.

16 (3) REQUESTS FOR GOVERNMENT-TO-GOVERN17 MENT ASSURANCES.—Any request by the Secretary or

18 another department or agency for government-to-gov19 ernment assurances of suitable end uses of items ap20 proved for export, when failure to obtain such assur21 ances would result in rejection of the application, if—

22 (A) the request for such assurances is sent

23 to the Secretary of State within 5 days after the

24 determination that the assurances are required;
89

•HR 361 RH

1 (B) the Secretary of State initiates the re2 quest of the relevant government within 10 days

3 thereafter; and

4 (C) the license is issued within 5 days after

5 the Secretary receives the requested assurances.

6 Whenever a prelicense check described in paragraph

7 (2) and assurances described in this paragraph are

8 not requested within the time periods set forth there9 in, then the time expended for such prelicense check

10 or assurances shall be included in calculating the

11 time periods established by this section.

12 (4) MULTILATERAL REVIEW.—Multilateral re13 view of a license application to the extent that such

14 multilateral review is required by a relevant multilat15 eral regime.

16 (5) CONGRESSIONAL NOTIFICATION.—Such time

17 as is required for mandatory congressional notifica18 tions under this title.

19 (6) CONSULTATIONS.—Consultation with other

20 governments, if such consultation is provided for by

21 a relevant multilateral regime as a precondition for

22 approving a license.

23 (g) APPEALS.—

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

25 appropriate procedures for any applicant to appeal to
90

•HR 361 RH

1 the Secretary the denial of an export license applica2 tion or other administrative action under this title.

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

4 any action prescribed in this section is not taken on

5 a license application within the time periods estab6 lished by this section (except in the case of a time pe7 riod extended under subsection (f) of which the appli8 cant is notified), the applicant may file a petition

9 with the Secretary requesting compliance with the re10 quirements of this section. When such petition is filed,

11 the Secretary shall take immediate steps to correct the

12 situation giving rise to the petition and shall imme13 diately notify the applicant of such steps.

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

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

16 processing of the application has not been brought

17 into conformity with the requirements of this section,

18 or the application has been brought into conformity

19 with such requirements but the Secretary has not so

20 notified the applicant, the applicant may bring an

21 action in an appropriate United States district court

22 for an order requiring compliance with the time peri23 ods required by this section. The United States dis24 trict courts shall have jurisdiction to provide such re25 lief, as appropriate.
91

•HR 361 RH

1 (h) CLASSIFICATION REQUESTS AND OTHER INQUIR2 IES.—

3 (1) CLASSIFICATION REQUESTS.—In any case in

4 which the Secretary receives a written request asking

5 for the proper classification of an item on the control

6 index, the Secretary shall, within 14 days after re7 ceiving the request, inform the person making the re8 quest of the proper classification.

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

10 the Secretary receives a written request for informa11 tion about the applicability of licensing requirements

12 under this title to a proposed export transaction or

13 series of transactions, the Secretary shall, within 30

14 days after receiving the request, reply with that infor15 mation to the person making the request.

16 SEC. 110. VIOLATIONS.

17 (a) CRIMINAL PENALTIES.—

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

19 provided in paragraph (3), any individual who

20 knowingly violates or conspires to or attempts to vio21 late any provision of this title or any regulation, li22 cense, or order issued under this title shall be fined

23 not more than 5 times the value of the exports in24 volved or $500,000, whichever is greater, or impris25 oned not more than 10 years, or both.
92

•HR 361 RH

1 (2) VIOLATIONS BY A PERSON OTHER THAN AN

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

3 any person other than an individual who knowingly

4 violates or conspires to or attempts to violate any

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

6 order issued under this title shall be fined not more

7 than 10 times the value of the exports involved or

8 $1,000,000, whichever is greater.

9 (3) ANTIBOYCOTT VIOLATIONS.—

10 (A) Any individual who knowingly violates

11 or conspires to or attempts to violate any regula12 tion or order issued under section 108 shall be

13 fined, for each violation, not more than 5 times

14 the value of the exports involved or $250,000,

15 whichever is greater, or imprisoned not more

16 than 10 years, or both.

17 (B) Any person other than an individual

18 who knowingly violates or conspires to or at19 tempts to violate any regulation or order issued

20 under section 108 shall be fined, for each viola21 tion, not more than 5 times the value of the ex22 ports involved or $500,000, whichever is greater.

23 (b) FORFEITURE OF PROPERTY INTEREST AND PRO24 CEEDS.—
93

•HR 361 RH

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

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

3 any other penalty, forfeit to the United States—

4 (A) any of that person’s interest in, security

5 of, claim against, or property or contractual

6 rights of any kind in the commodities or tangible

7 items that were the subject of the violation;

8 (B) any of that person’s interest in, security

9 of, claim against, or property or contractual

10 rights of any kind in tangible property that was

11 used in the export or attempt to export that was

12 the subject of the violation; and

13 (C) any of that person’s property constitut14 ing, or derived from, any proceeds obtained di15 rectly or indirectly as a result of the violation.

16 (2) PROCEDURES.—The procedures in any for17 feiture under this subsection, and the duties and au18 thority of the courts of the United States and the At19 torney General with respect to any forfeiture action

20 under this subsection or with respect to any property

21 that may be subject to forfeiture under this subsection,

22 shall be governed by the provisions of chapter 46 of

23 title 18, United States Code, to the same extent as

24 property subject to forfeiture under that chapter.

25 (c) CIVIL PENALTIES; ADMINISTRATIVE SANCTIONS.—
94

•HR 361 RH

1 (1) CIVIL PENALTIES.—The Secretary may im2 pose a civil penalty of not more than $250,000 for

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

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

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

6 be imposed, except that the civil penalty for each such

7 violation of regulations issued under section 108 may

8 not exceed $50,000.

9 (2) DENIAL OF EXPORT PRIVILEGES.—The Sec10 retary may deny the export privileges of any person,

11 including suspending or revoking the authority of any

12 person to export or receive United States-origin com13 modities or technology subject to this title, on account

14 of any violation of this title or any regulation, li15 cense, or order issued under this title.

16 (d) PAYMENT OF CIVIL PENALTIES.—The payment of

17 any civil penalty imposed under subsection (c) may be

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

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

20 granting, restoration, or continuing validity of any export

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

22 to the person upon whom such penalty is imposed. In addi23 tion, the payment of any civil penalty imposed under sub24 section (c) may be deferred or suspended in whole or in

25 part for a period of time no longer than any probation pe-
95

•HR 361 RH

1 riod (which may exceed 1 year) that may be imposed upon

2 such person. Such deferral or suspension shall not operate

3 as a bar to the collection of the penalty in the event that

4 the conditions of the suspension, deferral, or probation are

5 not fulfilled.

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

7 any civil penalty imposed under subsection (c) shall be cov8 ered into the Treasury as a miscellaneous receipt. The head

9 of the department or agency concerned may, in his or her

10 discretion, refund any such civil penalty imposed under

11 subsection (c), within 2 years after payment, on the ground

12 of a material error of fact or law in the imposition of the

13 penalty. Notwithstanding section 1346(a) of title 28, United

14 States Code, no action for the refund of any such penalty

15 may be maintained in any court.

16 (f) EFFECT OF OTHER CONVICTIONS.—

17 (1) DENIAL OF EXPORT PRIVILEGES.—Any per18 son convicted of a violation of—

19 (A) this title or the Export Administration

20 Act of 1979,

21 (B) the International Emergency Economic

22 Powers Act,

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

24 United States Code,
96

•HR 361 RH

1 (D) section 4(b) of the Internal Security Act

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

3 (E) section 38 of the Arms Export Control

4 Act,

5 (F) section 16 of the Trading with the

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

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

8 under any provision of law listed in subpara9 graph (A), (B), (C), (D), (E), or (F), or

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

11 States Code, if in connection with the export of

12 commodities or technology controlled under this

13 title, any regulation, license or order issued

14 under the International Emergency Economic

15 Powers Act, or defense articles or defense services

16 controlled under the Arms Export Control Act,

17 may, at the discretion of the Secretary, be denied ex18 port privileges under this title for a period of up to

19 10 years from the date of the conviction. The Sec20 retary may also revoke any export license under this

21 title in which such person had an interest at the time

22 of the conviction.

23 (2) RELATED PERSONS.—The Secretary may ex24 ercise the authority under paragraph (1) with respect

25 to any person related, through affiliation, ownership,
97

•HR 361 RH

1 control, or position of responsibility, to any person

2 convicted of any violation of a law set forth in para3 graph (1), upon a showing of such relationship with

4 the convicted person, after providing notice and op5 portunity for a hearing.

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

7 which a civil penalty or other administrative sanction

8 (other than a temporary denial order) is sought under sub9 section (c) may not be instituted more than 5 years after

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

11 in which a criminal indictment alleging a violation of this

12 title is returned within the time limits prescribed by law

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

14 for bringing a proceeding to impose such a civil penalty

15 or other administrative sanction under this title shall, upon

16 the return of the criminal indictment, be tolled against all

17 persons named as a defendant. The tolling of the statute

18 of limitations shall continue for a period of 6 months from

19 the date a conviction becomes final or the indictment is dis20 missed.

21 (h) VIOLATIONS DEFINED BY REGULATION.—Nothing

22 in this section shall limit the power of the Secretary to de23 fine by regulation violations under this title.

24 (i) OTHER AUTHORITIES.—Nothing in subsection (c),

25 (d), (e), (f), or (g) limits—
98

•HR 361 RH

1 (1) the availability of other administrative or ju2 dicial remedies with respect to violations of this title,

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

4 title;

5 (2) the authority to compromise and settle ad6 ministrative proceedings brought with respect to any

7 such violation; or

8 (3) the authority to compromise, remit, or miti9 gate seizures and forfeitures pursuant to section 1(b)

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

11 401(b)).

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

13 (1) against whom an act of discrimination de14 scribed in section 108(a)(1)(B) is committed, or

15 (2) who, on account of a violation of the regula16 tions issued pursuant to section 108(a), loses an op17 portunity to engage in a commercial venture pursu18 ant to a contract, joint venture, or other commercial

19 transaction, including an opportunity to bid or ten20 der an offer for a contract,

21 may bring an action in an appropriate district court of

22 the United States against the United States person commit23 ting the violation, for recovery of actual damages incurred

24 on account of such act of discrimination or lost oppor25 tunity. In any such action the court may award punitive
99

•HR 361 RH

1 damages. An action may be brought under this subsection

2 against a United States person whether or not the United

3 States person has been determined under this section to

4 have violated the regulations issued pursuant to section

5 108(a) on account of which the action is brought. In an

6 action brought under this subsection, unless the court finds

7 that the interests of justice require otherwise, the court shall

8 designate the substantially prevailing party or parties in

9 the action, and the remaining parties shall pay the reason10 able attorneys’ fees of the substantially prevailing party or

11 parties in such proportion as the court shall determine.

12 SEC. 111. CONTROLLING PROLIFERATION ACTIVITY.

13 (a) PROLIFERATION CONTROLS.—

14 (1) MISSILE TECHNOLOGY CONTROLS.—The Sec15 retary, in consultation with the Secretary of Defense

16 and the heads of other appropriate departments and

17 agencies and consistent with sections 103 and

18 104(g)—

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

20 the control index established under section

21 104(b), dual-use items on the MTCR Annex;

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

23 index established under section 104(b), items

24 that—
100

•HR 361 RH

1 (i) would make a material contribu2 tion to the design, development, test, pro3 duction, stockpiling, or use of missile deliv4 ery systems, and

5 (ii) are not included in the MTCR

6 Annex but which the United States has pro7 posed to the other members of the MTCR for

8 inclusion in the MTCR Annex; and

9 (C) shall require a license under paragraph

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

11 arrangements of the MTCR, for—

12 (i) any export of items on the control

13 index pursuant to subparagraphs (A) and

14 (B) to any country; and

15 (ii) any export of items that the ex16 porter knows is destined for a project or fa17 cility for the design, development, or manu18 facture of a missile in a country that is not

19 an adherent to the MTCR.

20 (2) CHEMICAL AND BIOLOGICAL WEAPONS CON21 TROLS.—The Secretary, in consultation with the Sec22 retary of Defense and the heads of other appropriate

23 departments and agencies and consistent with sections

24 103 and 104(g)—
101

•HR 361 RH

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

2 the control index established under section

3 104(b), dual-use items listed by the Australia

4 Group or the Chemical Weapons Convention;

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

6 index established under section 104(b), items

7 that—

8 (i) would make a material contribu9 tion to the design, development, test, pro10 duction, stockpiling, or use of chemical or

11 biological weapons, and

12 (ii) are not contained on the list of

13 controlled items of the Australia Group but

14 which the United States has proposed to the

15 other members of the Australia Group for

16 inclusion in such list; and

17 (C) shall require a license under paragraph

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

19 arrangements of the Australia Group and the

20 Chemical Weapons Convention, for—

21 (i) any export of items on the control

22 index pursuant to subparagraphs (A) and

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

24 in section 105(e); and
102

•HR 361 RH

1 (ii) any export of items that the ex2 porter knows is destined for a project or fa3 cility for the design, development, or manu4 facture of a chemical or biological weapon.

5 (3) POLICY OF DENIAL OF LICENSES.—(A) Li6 censes under paragraph (1)(C) should in general be

7 denied if the ultimate consignee of the commodities or

8 technology is a facility in a country that is not an

9 adherent to the MTCR and the facility is designed to

10 develop or build missiles.

11 (B) Licenses under paragraph (1)(C) shall be de12 nied if the ultimate consignee of the commodities or

13 technology is a facility in a country the government

14 of which has been determined under section 106(i)(1)

15 to have repeatedly provided support for acts of inter16 national terrorism.

17 (b) TECHNICAL AMENDMENTS TO ARMS EXPORT CON18 TROL ACT.—(1) Section 71(a) of the Arms Export Control

19 Act (22 U.S.C. 2797(a)) is amended by striking ‘‘6(l) of

20 the Export Administration Act of 1979’’ and inserting

21 ‘‘111(a) of the Export Administration Act of 1996’’.

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

23 (22 U.S.C. 2798(a)(1)) is amended in subparagraphs (A)

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

25 the second place it appears in each subparagraph.
103

•HR 361 RH

1 (c) GENERAL PROHIBITION.—Notwithstanding any

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

3 technology shall be prohibited if the ultimate consignee is

4 a program or activity for the design, development, manufac5 ture, stockpiling, testing, or other acquisition of a weapon

6 of mass destruction or missile in a country that is not an

7 adherent to the regime controlling such weapon or missile,

8 unless the Secretary determines such export would not make

9 a material contribution to such program or activity.

10 (d) CHEMICAL AND BIOLOGICAL WEAPONS PRO11 LIFERATION SANCTIONS.—

12 (1) IMPOSITION OF SANCTIONS.—

13 (A) DETERMINATION BY THE PRESIDENT.—

14 Except as provided in paragraph (2)(B), the

15 President shall impose both of the sanctions de16 scribed in paragraph (3) if the President deter17 mines that a foreign person, on or after the date

18 of the enactment of this Act, has knowingly and

19 materially contributed—

20 (i) through the export from the United

21 States of any goods or technology that are

22 subject to the jurisdiction of the United

23 States under this title, or

24 (ii) through the export from any other

25 country of any goods or technology that
104

•HR 361 RH

1 would be, if they were United States goods

2 or technology, subject to the jurisdiction of

3 the United States under this title,

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

5 entity described in subparagraph (B) to use, de6 velop, produce, stockpile, or otherwise acquire

7 chemical or biological weapons.

8 (B) COUNTRIES, PROJECTS, OR ENTITIES

9 RECEIVING ASSISTANCE.—Subparagraph (A) ap10 plies in the case of—

11 (i) any foreign country that the Presi12 dent determines has, at any time after Jan13 uary 1, 1980—

14 (I) used chemical or biological

15 weapons in violation of international

16 law;

17 (II) used lethal chemical or bio18 logical weapons against its own na19 tionals; or

20 (III) made substantial prepara21 tions to engage in the activities de22 scribed in subclause (I) or (II);

23 (ii) any foreign country whose govern24 ment is determined for purposes of section

25 106(i) to be a government that has repeat-
105

•HR 361 RH

1 edly provided support for acts of inter2 national terrorism; or

3 (iii) any other foreign country, project,

4 or entity designated by the President for

5 purposes of this subsection.

6 (C) PERSONS AGAINST WHICH SANCTIONS

7 ARE TO BE IMPOSED.—Sanctions shall be im8 posed pursuant to subparagraph (A) on—

9 (i) the foreign person with respect to

10 which the President makes the determina11 tion described in that subparagraph;

12 (ii) any successor entity to that foreign

13 person;

14 (iii) any foreign person that is a par15 ent or subsidiary of that foreign person if

16 that parent or subsidiary knowingly as17 sisted in the activities which were the basis

18 of that determination; and

19 (iv) any foreign person that is an affil20 iate of that foreign person if that affiliate

21 knowingly assisted in the activities which

22 were the basis of that determination and if

23 that affiliate is controlled in fact by that

24 foreign person.
106

•HR 361 RH

1 (2) CONSULTATIONS WITH AND ACTIONS BY FOR2 EIGN GOVERNMENT OF JURISDICTION.—

3 (A) CONSULTATIONS.—If the President

4 makes the determinations described in paragraph

5 (1)(A) with respect to a foreign person, the Con6 gress urges the President to initiate consultations

7 immediately with the government with primary

8 jurisdiction over that foreign person with respect

9 to the imposition of sanctions pursuant to this

10 subsection.

11 (B) ACTIONS BY GOVERNMENT OF JURISDIC12 TION.—In order to pursue such consultations

13 with that government, the President may delay

14 imposition of sanctions pursuant to this sub15 section for a period of up to 90 days. Following

16 these consultations, the President shall impose

17 sanctions unless the President determines and

18 certifies to the Congress that that government has

19 taken specific and effective actions, including ap20 propriate penalties, to terminate the involvement

21 of the foreign person in the activities described

22 in paragraph (1)(A). The President may delay

23 imposition of sanctions for an additional period

24 of up to 90 days if the President determines and

25 certifies to the Congress that that government is
107

•HR 361 RH

1 in the process of taking the actions described in

2 the preceding sentence.

3 (C) REPORT TO CONGRESS.—The President

4 shall report to the Congress, not later than 90

5 days after making a determination under para6 graph (1)(A), on the status of consultations with

7 the appropriate government under this sub8 section, and the basis for any determination

9 under subparagraph (B) of this paragraph that

10 such government has taken specific corrective ac11 tions.

12 (3) SANCTIONS.—

13 (A) DESCRIPTION OF SANCTIONS.—The

14 sanctions to be imposed pursuant to paragraph

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

16 (B) of this paragraph, the following:

17 (i) PROCUREMENT SANCTION.—The

18 United States Government shall not pro19 cure, or enter into any contract for the pro20 curement of, any goods or services from any

21 person described in paragraph (1)(C).

22 (ii) IMPORT SANCTIONS.—The impor23 tation into the United States of products

24 produced by any person described in para25 graph (1)(C) shall be prohibited.
108

•HR 361 RH

1 (B) EXCEPTIONS.—The President shall not

2 be required to apply or maintain sanctions

3 under this subsection—

4 (i) in the case of procurement of de5 fense articles or defense services—

6 (I) under existing contracts or

7 subcontracts, including the exercise of

8 options for production quantities to

9 satisfy United States operational mili10 tary requirements;

11 (II) if the President determines

12 that the person or other entity to which

13 the sanctions would otherwise be ap14 plied is a sole source supplier of the de15 fense articles or services, that the de16 fense articles or services are essential,

17 and that alternative sources are not

18 readily or reasonably available; or

19 (III) if the President determines

20 that such articles or services are essen21 tial to the national security under de22 fense coproduction agreements;

23 (ii) to products or services provided

24 under contracts entered into before the date
109

•HR 361 RH

1 on which the President publishes his inten2 tion to impose sanctions;

3 (iii) to—

4 (I) spare parts,

5 (II) component parts, but not fin6 ished products, essential to United

7 States products or production, or

8 (III) routine servicing and main9 tenance of products, to the extent that

10 alternative sources are not readily or

11 reasonably available;

12 (iv) to information and technology es13 sential to United States products or produc14 tion; or

15 (v) to medical or other humanitarian

16 items.

17 (4) TERMINATION OF SANCTIONS.—The sanctions

18 imposed pursuant to this subsection shall apply for a

19 period of at least 12 months following the imposition

20 of sanctions and shall cease to apply thereafter only

21 if the President determines and certifies to the Con22 gress that reliable information indicates that the for23 eign person with respect to which the determination

24 was made under paragraph (1)(A) has ceased to aid

25 or abet any foreign government, project, or entity in
110

•HR 361 RH

1 its efforts to acquire chemical or biological weapons

2 capability as described in that paragraph.

3 (5) WAIVER.—

4 (A) CRITERION FOR WAIVER.—The Presi5 dent may waive the application of any sanction

6 imposed on any person pursuant to this sub7 section, after the end of the 12-month period be8 ginning on the date on which that sanction was

9 imposed on that person, if the President deter10 mines and certifies to the Congress that such

11 waiver is important to the national security in12 terests of the United States.

13 (B) NOTIFICATION OF AND REPORT TO CON14 GRESS.—If the President decides to exercise the

15 waiver authority provided in subparagraph (A),

16 the President shall so notify the Congress not less

17 than 20 days before the waiver takes effect. Such

18 notification shall include a report fully articu19 lating the rationale and circumstances which led

20 the President to exercise the waiver authority.

21 (6) DEFINITION OF FOREIGN PERSON.—For pur22 poses of this subsection, the term ‘‘foreign person’’

23 means—
111

•HR 361 RH

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

2 the United States or an alien lawfully admitted

3 for permanent residence to the United States; or

4 (B) a corporation, partnership, or other en5 tity which is created or organized under the laws

6 of a foreign country or which has its principal

7 place of business outside the United States.

8 (e) MISSILE PROLIFERATION CONTROL VIOLATIONS.—

9 (1) VIOLATIONS BY UNITED STATES PERSONS.—

10 (A) SANCTIONS.—(i) If the President deter11 mines that a United States person knowingly—

12 (I) exports, transfers, or otherwise en13 gages in the trade of any item on the

14 MTCR Annex, in violation of the provisions

15 of section 38 (22 U.S.C. 2778) or chapter 7

16 of the Arms Export Control Act, this title,

17 or any regulations or orders issued under

18 any such provisions,

19 (II) conspires to or attempts to engage

20 in such export, transfer, or trade, or

21 (III) facilitates such export, transfer,

22 or trade by any other person,

23 then the President shall impose the applicable

24 sanctions described in clause (ii).
112

•HR 361 RH

1 (ii) The sanctions which apply to a United

2 States person under clause (i) are the following:

3 (I) If the item on the MTCR Annex in4 volved in the export, transfer, or trade is

5 missile equipment or technology within cat6 egory II of the MTCR Annex, then the

7 President shall deny to such United States

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

9 the transfer of missile equipment or tech10 nology controlled under this title.

11 (II) If the item on the MTCR Annex

12 involved in the export, transfer, or trade is

13 missile equipment or technology within cat14 egory I of the MTCR Annex, then the Presi15 dent shall deny to such United States per16 son, for a period of not less than 2 years,

17 all licenses for items the export of which is

18 controlled under this title.

19 (B) DISCRETIONARY SANCTIONS.—In the

20 case of any determination referred to in sub21 paragraph (A), the Secretary may pursue any

22 other appropriate penalties under section 110.

23 (C) WAIVER.—The President may waive the

24 imposition of sanctions under subparagraph (A)
113

•HR 361 RH

1 on a person with respect to a product or service

2 if the President certifies to the Congress that—

3 (i) the product or service is essential to

4 the national security of the United States;

5 and

6 (ii) such person is a sole source sup7 plier of the product or service, the product

8 or service is not available from any alter9 native reliable supplier, and the need for the

10 product or service cannot be met in a time11 ly manner by improved manufacturing

12 processes or technological developments.

13 (2) TRANSFERS OF MISSILE EQUIPMENT OR

14 TECHNOLOGY BY FOREIGN PERSONS.—

15 (A) SANCTIONS.—(i) Subject to subpara16 graphs (C) through (G), if the President deter17 mines that a foreign person, after the date of the

18 enactment of this section, knowingly—

19 (I) exports, transfers, or otherwise en20 gages in the trade of any MTCR equipment

21 or technology that contributes to the design,

22 development, or production of missiles in a

23 country that is not an adherent to the

24 MTCR and would be, if it were United

25 States-origin equipment or technology, sub-
114

•HR 361 RH

1 ject to the jurisdiction of the United States

2 under this title,

3 (II) conspires to or attempts to engage

4 in such export, transfer, or trade, or

5 (III) facilitates such export, transfer,

6 or trade by any other person,

7 or if the President has made a determination

8 with respect to a foreign person, under section

9 73(a) of the Arms Export Control Act, then the

10 President shall impose on that foreign person the

11 applicable sanctions under clause (ii).

12 (ii) The sanctions which apply to a foreign

13 person under clause (i) are the following:

14 (I) If the item involved in the export,

15 transfer, or trade is within category II of

16 the MTCR Annex, then the President shall

17 deny, for a period of 2 years, licenses for the

18 transfer to such foreign person of missile

19 equipment or technology the export of which

20 is controlled under this title.

21 (II) If the item involved in the export,

22 transfer, or trade is within category I of the

23 MTCR Annex, then the President shall

24 deny, for a period of not less than 2 years,

25 licenses for the transfer to such foreign per-
115

•HR 361 RH

1 son of items the export of which is con2 trolled under this title.

3 (III) If, in addition to actions taken

4 under subclauses (I) and (II), the President

5 determines that the export, transfer, or

6 trade has substantially contributed to the

7 design, development, or production of mis8 siles in a country that is not an adherent

9 to the MTCR, then the President shall pro10 hibit, for a period of not less than 2 years,

11 the importation into the United States of

12 products produced by that foreign person.

13 (B) INAPPLICABILITY WITH RESPECT TO

14 MTCR ADHERENTS.—Subparagraph (A) does not

15 apply with respect to—

16 (i) any export, transfer, or trading ac17 tivity that is authorized by the laws of an

18 adherent to the MTCR, if such authoriza19 tion is not obtained by misrepresentation or

20 fraud; or

21 (ii) any export, transfer, or trade of an

22 item to an end user in a country that is an

23 adherent to the MTCR.

24 (C) EFFECT OF ENFORCEMENT ACTIONS BY

25 MTCR ADHERENTS.—Sanctions set forth in sub-
116

•HR 361 RH

1 paragraph (A) may not be imposed under this

2 paragraph on a person with respect to acts de3 scribed in such subparagraph or, if such sanc4 tions are in effect against a person on account

5 of such acts, such sanctions shall be terminated,

6 if an adherent to the MTCR is taking judicial or

7 other enforcement against that person with re8 spect to such acts, or that person has been found

9 by the government of an adherent to the MTCR

10 to be innocent of wrongdoing with respect to such

11 acts.

12 (D) ADVISORY OPINIONS.—The Secretary,

13 in consultation with the Secretary of State and

14 the Secretary of Defense, may, upon the request

15 of any person, issue an advisory opinion to that

16 person as to whether a proposed activity by that

17 person would subject that person to sanctions

18 under this paragraph. Any person who relies in

19 good faith on such an advisory opinion which

20 states that the proposed activity would not sub21 ject a person to such sanctions, and any person

22 who thereafter engages in such activity, may not

23 be made subject to such sanctions on account of

24 such activity.
117

•HR 361 RH

1 (E) WAIVER AND REPORT TO CONGRESS.—

2 (i) In any case other than one in which an advi3 sory opinion has been issued under subpara4 graph (D) stating that a proposed activity would

5 not subject a person to sanctions under this

6 paragraph, the President may waive the applica7 tion of subparagraph (A) to a foreign person if

8 the President determines that such waiver is es9 sential to the national security of the United

10 States.

11 (ii) In the event that the President decides

12 to apply the waiver described in clause (i), the

13 President shall so notify the Congress not less

14 than 20 working days before issuing the waiver.

15 Such notification shall include a report fully ar16 ticulating the rationale and circumstances which

17 led the President to apply the waiver.

18 (F) ADDITIONAL WAIVER.—The President

19 may waive the imposition of sanctions under

20 subparagraph (A) on a person with respect to a

21 product or service if the President certifies to the

22 Congress that—

23 (i) the product or service is essential to

24 the national security of the United States;

25 and
118

•HR 361 RH

1 (ii) such person is a sole source sup2 plier of the product or service, the product

3 or service is not available from any alter4 native reliable supplier, and the need for the

5 product or service cannot be met in a time6 ly manner by improved manufacturing

7 processes or technological developments.

8 (G) EXCEPTIONS FROM IMPORT SANC9 TIONS.—The President shall not apply the sanc10 tion under this subsection prohibiting the impor11 tation of the products of a foreign person—

12 (i) in the case of procurement of de13 fense articles or defense services—

14 (I) under existing contracts or

15 subcontracts, including the exercise of

16 options for production quantities to

17 satisfy requirements essential to the

18 national security of the United States;

19 (II) if the President determines

20 that the person to which the sanctions

21 would be applied is a sole source sup22 plier of the defense articles and serv23 ices, that the defense articles or services

24 are essential to the national security of

25 the United States, and that alternative
119

•HR 361 RH

1 sources are not readily or reasonably

2 available; or

3 (III) if the President determines

4 that such articles or services are essen5 tial to the national security of the

6 United States under defense coproduc7 tion agreements;

8 (ii) to products or services provided

9 under contracts entered into before the date

10 on which the President publishes his inten11 tion to impose the sanctions; or

12 (iii) to—

13 (I) spare parts,

14 (II) component parts, but not fin15 ished products, essential to United

16 States products or production,

17 (III) routine services and mainte18 nance of products, to the extent that al19 ternative 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—
120

•HR 361 RH

1 (A) the terms ‘‘missile equipment or tech2 nology’’ and ‘‘MTCR equipment or technology’’

3 mean those items listed in category I or category

4 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 associa9 tion, partnership, society, trust, any other non10 governmental entity, organization, or group, and

11 any governmental entity operating as a business

12 enterprise, and any successor of any such entity;

13 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 ‘‘person’’

17 means—

18 (I) all activities of that government re19 lating to the development or production of

20 any missile equipment or technology; and

21 (II) all activities of that government

22 affecting the development or production of

23 aircraft, electronics, and space systems or

24 equipment; and
121

•HR 361 RH

1 (D) the term ‘‘otherwise engaged in the

2 trade of’’ means, with respect to a particular ex3 port or transfer, to be a freight forwarder or des4 ignated exporting agent, or a consignee or end

5 user of the item to be exported or transferred.

6 (f) EFFECT ON OTHER LAWS.—The provisions of this

7 section do not affect any activities subject to the reporting

8 requirements contained in title V of the National Security

9 Act of 1947.

10 (g) SEEKING MULTILATERAL SUPPORT FOR UNILAT11 ERAL SANCTIONS.—The Secretary of State, in consultation

12 with appropriate departments and agencies, shall seek the

13 support of other countries for sanctions imposed under this

14 section.

15 SEC. 112. ADMINISTRATIVE AND JUDICIAL REVIEW.

16 (a) APPLICABILITY.—

17 (1) EXEMPTIONS FROM ADMINISTRATIVE PROCE18 DURE.—Except as provided in this section, the func19 tions exercised under this title are excluded from the

20 operation of sections 551, 553 through 559, and 701

21 through 706 of title 5, United States Code.

22 (2) JUDICIAL REVIEW.—Except as otherwise pro23 vided in this section, a final agency action under this

24 title may be reviewed by appeal to the United States

25 Court of Appeals for the District of Columbia Circuit,
122

•HR 361 RH

1 to the extent provided in this paragraph. The court’s

2 review in any such appeal shall be limited to deter3 mining whether—

4 (A) a regulation—

5 (i) fails to take an action required by

6 this title;

7 (ii) takes an action prohibited by this

8 title; or

9 (iii) otherwise violates this title;

10 (B) an agency action violates this title;

11 (C) an agency action violates an agency

12 regulation establishing time requirements or

13 other procedural requirements of a non-discre14 tionary nature;

15 (D) the issuance of regulations required by

16 this title complies with time restrictions imposed

17 by this title;

18 (E) license decisions are made and appeals

19 thereof are concluded in compliance with time

20 restrictions imposed by this title;

21 (F) classifications and advisory opinions

22 are issued in compliance with time restrictions

23 imposed by this title;
123

•HR 361 RH

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 AND

8 SANCTIONS.—

9 (1) ADMINISTRATIVE PROCEDURES.—Any ad10 ministrative sanction imposed under section 110(c)

11 may be imposed only after notice and opportunity for

12 an agency hearing on the record in accordance with

13 sections 554 through 557 of title 5, United States

14 Code. The imposition of any such administrative

15 sanction shall be subject to judicial review in accord16 ance with sections 701 through 706 of title 5, United

17 States Code.

18 (2) AVAILABILITY OF CHARGING LETTER.—Any

19 charging letter or other document initiating adminis20 trative proceedings for the imposition of sanctions for

21 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
124

•HR 361 RH

1 ask the Attorney General to bring a civil action in an ap2 propriate district court to recover the amount imposed (plus

3 interest at currently prevailing rates from the date of the

4 final order). No such action may be commenced more than

5 5 years after the order imposing the civil penalty becomes

6 final. In such an action, the validity, amount, and appro7 priateness of such penalty shall not be subject to review.

8 (d) IMPOSITION OF TEMPORARY DENIAL ORDERS.—

9 (1) GROUNDS FOR IMPOSITION.—In any case in

10 which there is reasonable cause to believe that a per11 son is engaged in or is about to engage in any act

12 or practice which constitutes or would constitute a

13 violation of this title, or any regulation, order, or li14 cense issued under this title, including any diversion

15 of goods or technology from an authorized end use or

16 end user, or in any case in which a criminal indict17 ment has been returned against a person alleging a

18 violation of this title or any of the statutes listed in

19 section 110(f), the Secretary may, without a hearing,

20 issue an order temporarily denying that person’s

21 United States export privileges (hereafter in this sub22 section referred to a ‘‘temporary denial order’’). A

23 temporary denial order may be effective for no longer

24 than 180 days, but may be renewed by the Secretary,
125

•HR 361 RH

1 following notice and an opportunity for a hearing, for

2 additional periods of not more than 180 days each.

3 (2) ADMINISTRATIVE APPEALS.—The person or

4 persons subject to the issuance or renewal of a tem5 porary denial order may appeal the issuance or re6 newal of the temporary denial order, supported by

7 briefs and other material, to an administrative law

8 judge who shall, within 15 working days after the ap9 peal is filed, issue a decision affirming, modifying, or

10 vacating the temporary denial order. The temporary

11 denial order shall be affirmed if it is shown that—

12 (A) there is reasonable cause to believe that

13 the person subject to the order is engaged in or

14 is about to engage in any act or practice which

15 constitutes or would constitute a violation of this

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

17 under this title, or

18 (B) a criminal indictment has been re19 turned against the person subject to the order al20 leging a violation of this title or any of the stat21 utes listed in section 110(f).

22 The decision of the administrative law judge shall be

23 final unless, within 10 working days after the date of

24 the administrative law judge’s decision, an appeal is

25 filed with the Secretary. On appeal, the Secretary
126

•HR 361 RH

1 shall either affirm, modify, reverse, or vacate the deci2 sion of the administrative law judge by written order

3 within 10 working days after receiving the appeal.

4 The written order of the Secretary shall be final and

5 is not subject to judicial review, except as provided

6 in paragraph (3). The materials submitted to the ad7 ministrative law judge and the Secretary shall con8 stitute the administrative record for purposes of re9 view by the court.

10 (3) COURT APPEALS.—An order of the Secretary

11 affirming, in whole or in part, the issuance or re12 newal of a temporary denial order may, within 15

13 days after the order is issued, be appealed by a person

14 subject to the order to the United States Court of Ap15 peals for the District of Columbia Circuit, which shall

16 have jurisdiction of the appeal. The court may review

17 only those issues necessary to determine whether the

18 issuance of the temporary denial order was based on

19 reasonable cause to believe that the person subject to

20 the order was engaged in or was about to engage in

21 any act or practice which constitutes or would con22 stitute a violation of this title, or any regulation,

23 order, or license issued under this title, or if a crimi24 nal indictment has been returned against the person

25 subject to the order alleging a violation of this title
127

•HR 361 RH

1 or any of the statutes listed in section 110(f). The

2 court shall vacate the Secretary’s order if the court

3 finds that the Secretary’s order is arbitrary, capri4 cious, an abuse of discretion, or otherwise not in ac5 cordance with law.

6 SEC. 113. ENFORCEMENT.

7 (a) GENERAL AUTHORITY AND DESIGNATION.—

8 (1) POLICY GUIDANCE ON ENFORCEMENT.—The

9 Secretary, in consultation with the Secretary of the

10 Treasury and the heads of other appropriate depart11 ments and agencies, shall be responsible for providing

12 policy guidance on the enforcement of this title.

13 (2) GENERAL AUTHORITIES.—(A) To the extent

14 necessary or appropriate to the enforcement of this

15 title or to the imposition of any penalty, forfeiture,

16 or liability arising under the Export Administration

17 Act of 1979, officers or employees of the Department

18 of Commerce designated by the Secretary and officers

19 and employees of the United States Customs Service

20 designated by the Commissioner may exercise the en21 forcement authorities described in paragraph (3).

22 (B) In carrying out the enforcement authorities

23 described in paragraph (3), the Commissioner of Cus24 toms, and employees of the United States Customs

25 Service designated by the Commissioner, may make
128

•HR 361 RH

1 investigations within or outside the United States

2 and at those ports of entry or exit from the United

3 States where officers of the United States Customs

4 Service are authorized by law to carry out such en5 forcement responsibilities. Subject to paragraph (3),

6 the United States Customs Service is authorized, in

7 the enforcement of this title, to search, detain (after

8 search), and seize commodities or technology at those

9 ports of entry or exit from the United States where

10 officers of the Customs Service are authorized by law

11 to conduct such searches, detentions, and seizures, and

12 at those places outside the United States where the

13 Customs Service, pursuant to agreements or other ar14 rangements with other countries, is authorized to per15 form enforcement activities.

16 (C) In carrying out the enforcement authorities

17 described in paragraph (3), the Secretary, and officers

18 and employees of the Department of Commerce des19 ignated by the Secretary, may make investigations

20 within the United States, and shall conduct, outside

21 the United States, prelicense and postshipment ver22 ifications of items licensed for export and investiga23 tions in the enforcement of section 108. The Secretary,

24 and officers and employees of the Department of Com25 merce designated by the Secretary, are authorized to
129

•HR 361 RH

1 search, detain (after search), and seize items at those

2 places within the United States other than those ports

3 specified in subparagraph (B). The search, detention

4 (after search), or seizure of items at those ports and

5 places specified in subparagraph (B) may be con6 ducted by officers and employees of the Department

7 of Commerce only with the concurrence of the Com8 missioner of Customs or a person designated by the

9 Commissioner.

10 (D) The Secretary and the Commissioner of Cus11 toms may enter into agreements and arrangements

12 for the enforcement of this title, including foreign in13 vestigations and information exchange.

14 (3) SPECIFIC AUTHORITIES.—(A) Any officer or

15 employee designated under paragraph (2) may do the

16 following in carrying out the enforcement authority

17 under this title:

18 (i) Make investigations of, obtain informa19 tion from, make inspection of any books, records,

20 or reports (including any writings required to be

21 kept by the Secretary), premises, or property of,

22 and take the sworn testimony of, any person.

23 (ii) Administer oaths or affirmations, and

24 by subpoena require any person to appear and

25 testify or to appear and produce books, records,
130

•HR 361 RH

1 and other writings, or both. In the case of contu2 macy by, or refusal to obey a subpoena issued to,

3 any such person, a district court of the United

4 States, on request of the Attorney General and

5 after notice to any such person and a hearing,

6 shall have jurisdiction to issue an order requir7 ing such person to appear and give testimony or

8 to appear and produce books, records, and other

9 writings, or both. Any failure to obey such order

10 of the court may be punished by such court as

11 a contempt thereof. The attendance of witnesses

12 and the production of documents provided for in

13 this clause may be required from any State, the

14 District of Columbia, or in any territory of the

15 United States at any designated place. Witnesses

16 subpoenaed under this subsection shall be paid

17 the same fees and mileage as are paid witnesses

18 in the district courts of the United States.

19 (B)(i) Any officer or employee of the Office of

20 Export Enforcement of the Department of Commerce

21 who is designated by the Secretary under paragraph

22 (2), and any officer or employee of the United States

23 Customs Service who is designated by the Commis24 sioner of Customs under paragraph (2), may do the
131

•HR 361 RH

1 following in carrying out the enforcement authority

2 under this title:

3 (I) Execute any warrant or other process is4 sued by a court or officer of competent jurisdic5 tion with respect to the enforcement of this title.

6 (II) Make arrests without warrant for any

7 violation of this title committed in his or her

8 presence or view, or if the officer or employee has

9 probable cause to believe that the person to be ar10 rested has committed, is committing, or is about

11 to commit such a violation.

12 (III) Carry firearms.

13 (ii) Officers and employees of the Office of Ex14 port Enforcement designated by the Secretary under

15 paragraph (2) shall exercise the authorities set forth

16 in clause (i) pursuant to guidelines approved by the

17 Attorney General.

18 (C) Any officer or employee of the United States

19 Customs Service designated by the Commissioner of

20 Customs under paragraph (2) may do the following

21 in carrying out the enforcement authority under this

22 title:

23 (i) Stop, search, and examine a vehicle, ves24 sel, aircraft, or person on which or whom the of25 ficer or employee has reasonable cause to suspect
132

•HR 361 RH

1 there is any item that has been, is being, or is

2 about to be exported from or transited through

3 the United States in violation of this title.

4 (ii) Detain and search any package or con5 tainer in which the officer or employee has rea6 sonable cause to suspect there is any item that

7 has been, is being, or is about to be exported

8 from or transited through the United States in

9 violation of this title.

10 (iii) Detain (after search) or seize any item,

11 for purposes of securing for trial or forfeiture to

12 the United States, on or about such vehicle, ves13 sel, aircraft, or person or in such package or con14 tainer, if the officer or employee has probable

15 cause to believe the item has been, is being, or is

16 about to be exported from or transited through

17 the United States in violation of this title.

18 (4) OTHER AUTHORITIES NOT AFFECTED.—The

19 authorities conferred by this section are in addition

20 to any authorities conferred under other laws.

21 (b) FORFEITURE.—Any commodities or tangible items

22 lawfully seized under subsection (a) by designated officers

23 or employees shall be subject to forfeiture to the United

24 States. Those provisions of law relating to—
133

•HR 361 RH

1 (1) the seizure, summary and judicial forfeiture,

2 and condemnation of property for violations of the

3 customs laws,

4 (2) the disposition of such property or the pro5 ceeds from the sale thereof,

6 (3) the remission or mitigation of such forfeit7 ures, and

8 (4) the compromise of claims,

9 shall apply to seizures and forfeitures incurred, or alleged

10 to have been incurred, under the provisions of this sub11 section, insofar as applicable and not inconsistent with this

12 title; except that such duties as are imposed upon the cus13 toms officer or any other person with respect to the seizure

14 and forfeiture of property under the customs laws may be

15 performed with respect to seizures and forfeitures of prop16 erty under this subsection by the Secretary or such officers

17 and employees of the Department of Commerce as may be

18 authorized or designated for that purpose by the Secretary,

19 or, upon the request of the Secretary, by any other agency

20 that has authority to manage and dispose of seized prop21 erty.

22 (c) REFERRAL OF CASES.—All cases involving viola23 tions of this title shall be referred to the Secretary for pur24 poses of determining civil penalties and administrative

25 sanctions under section 110(c), or to the Attorney General
134

•HR 361 RH

1 for criminal action in accordance with this title or to both

2 the Secretary and the Attorney General.

3 (d) UNDERCOVER INVESTIGATION OPERATIONS.—

4 (1) USE OF FUNDS.—With respect to any under5 cover investigative operation conducted by the Office

6 of Export Enforcement of the Department of Com7 merce (hereafter in this subsection referred to as

8 ‘‘OEE’’) necessary for the detection and prosecution of

9 violations of this title—

10 (A) funds made available for export enforce11 ment under this title may be used to purchase

12 property, buildings, and other facilities, and to

13 lease space within the United States, without re14 gard to sections 1341 and 3324 of title 31, Unit15 ed States Code, the third undesignated para16 graph under the heading of ‘‘MISCELLANEOUS’’ of

17 the Act of March 3, 1877 (40 U.S.C. 34), sections

18 3732(a) and 3741 of the Revised Statutes of the

19 United States (41 U.S.C. 11(a) and 22), and

20 subsections (a) and (c) of section 304, and sec21 tion 305 of the Federal Property and Adminis22 trative Services Act of 1949 (41 U.S.C. 254 (a)

23 and (c) and 255),

24 (B) funds made available for export enforce25 ment under this title may be used to establish or
135

•HR 361 RH

1 to acquire proprietary corporations or business

2 entities as part of an undercover operation, and

3 to operate such corporations or business entities

4 on a commercial basis, without regard to section

5 9102 of title 31, United States Code,

6 (C) funds made available for export enforce7 ment under this title and the proceeds from un8 dercover operations may be deposited in banks or

9 other financial institutions without regard to the

10 provisions of section 648 of title 18, United

11 States Code, and section 3302 of title 31, United

12 States Code, and

13 (D) the proceeds from undercover operations

14 may be used to offset necessary and reasonable

15 expenses incurred in such operations without re16 gard to the provisions of section 3302 of title 31,

17 United States Code,

18 if the Director of OEE (or an officer or employee des19 ignated by the Director) certifies, in writing, that the

20 action authorized by subparagraph (A), (B), (C), or

21 (D) for which the funds would be used is necessary for

22 the conduct of the undercover operation.

23 (2) DISPOSITION OF BUSINESS ENTITIES.—If a

24 corporation or business entity established or acquired

25 as part of an undercover operation with a net value
136

•HR 361 RH

1 of more than $50,000 is to be liquidated, sold, or oth2 erwise disposed of, the Director of OEE shall report

3 the circumstances to the Secretary and the Comptrol4 ler General, as much in advance of such disposition

5 as the Director of OEE or his or her designee deter6 mines is practicable. The proceeds of the liquidation,

7 sale, or other disposition, after obligations incurred

8 by the corporation or business enterprise are met,

9 shall be deposited in the Treasury of the United

10 States as miscellaneous receipts.

11 (3) DEPOSIT OF PROCEEDS.—As soon as the pro12 ceeds from an OEE undercover investigative oper13 ation with respect to which an action is authorized

14 and carried out under this subsection are no longer

15 necessary for the conduct of such operation, such pro16 ceeds or the balance of such proceeds remaining at the

17 time shall be deposited into the Treasury of the Unit18 ed States as miscellaneous receipts.

19 (4) AUDIT AND REPORT.—(A) The Director of

20 OEE shall conduct a detailed financial audit of each

21 OEE undercover investigative operation which is

22 closed and shall submit the results of the audit in

23 writing to the Secretary. Not later than 180 days

24 after an undercover operation is closed, the Secretary
137

•HR 361 RH

1 shall submit to the Congress a report on the results

2 of the audit.

3 (B) The Secretary shall submit annually to the

4 Congress a report, which may be included in the an5 nual report under section 115, specifying the follow6 ing information:

7 (i) The number of undercover investigative

8 operations pending as of the end of the period for

9 which such report is submitted.

10 (ii) The number of undercover investigative

11 operations commenced in the 1-year period pre12 ceding the period for which such report is sub13 mitted.

14 (iii) The number of undercover investigative

15 operations closed in the 1-year period preceding

16 the period for which such report is submitted

17 and, with respect to each such closed undercover

18 operation, the results obtained and any civil

19 claims made with respect thereto.

20 (5) DEFINITIONS.—For purposes of paragraph

21 (4)—

22 (A) the term ‘‘closed’’, with respect to an

23 undercover investigative operation, refers to the

24 earliest point in time at which all criminal pro25 ceedings (other than appeals) pursuant to the in-
138

•HR 361 RH

1 vestigative operation are concluded, or covert ac2 tivities pursuant to such operation are con3 cluded, whichever occurs later;

4 (B) the terms ‘‘undercover investigative op5 eration’’ and ‘‘undercover operation’’ mean any

6 undercover investigative operation conducted by

7 OEE—

8 (i) in which the gross receipts (exclud9 ing interest earned) exceed $25,000, or ex10 penditures (other than expenditures for sal11 aries of employees) exceed $75,000, and

12 (ii) which is exempt from section 3302

13 or 9102 of title 31, United States Code,

14 except that clauses (i) and (ii) shall not apply

15 with respect to the report to the Congress re16 quired by subparagraph (B) of paragraph (4);

17 and

18 (C) the term ‘‘employees’’ means employees,

19 as defined in section 2105 of title 5, United

20 States Code, of the Department of Commerce.

21 (e) REFERENCE TO ENFORCEMENT.—For purposes of

22 this section, a reference to the enforcement of this title or

23 to a violation of this title includes a reference to the enforce24 ment or a violation of any regulation, license, or order is25 sued under this title.
139

•HR 361 RH

1 SEC. 114. EXPORT CONTROL AUTHORITIES AND PROCE2 DURES.

3 (a) POLICY GUIDANCE.—

4 (1) IN GENERAL.—As directed by the President,

5 annual policy guidance shall be issued to provide de6 tailed implementing guidance to export licensing offi7 cials in all appropriate departments and agencies.

8 (2) ELEMENTS OF ANNUAL POLICY REVIEW.—In

9 order to develop such annual policy guidance, export

10 controls and other regulations to implement this title

11 shall be reviewed annually. This annual policy review

12 shall include an evaluation of the benefits and costs

13 of the imposition, extension, or removal of controls

14 under this title. This review shall include—

15 (A) an assessment by the Secretary of the

16 economic consequences of the imposition, exten17 sion, or removal of controls during the preceding

18 12 months, including the impact on United

19 States exports or jobs;

20 (B) an assessment by the Secretary of State

21 of the objectives of the controls in effect during

22 the preceding 12 months, and the extent to which

23 the controls have served those objectives; and

24 (C) an assessment by the Secretary of De25 fense of the impact that the imposition, exten26 sion, or removal of controls during the preceding
140

•HR 361 RH

1 12 months has had on United States national se2 curity.

3 (b) EXPORT CONTROL AUTHORITY AND FUNCTIONS.—

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

5 the President or a department or agency outside the

6 Department of Commerce, all power, authority, and

7 discretion conferred by this title shall be exercised by

8 the Secretary.

9 (2) DELEGATION OF FUNCTIONS OF THE SEC10 RETARY.—The Secretary may delegate any function

11 under this title to the Under Secretary of Commerce

12 for Export Administration appointed under sub13 section (d) or to any other officer of the Department

14 of Commerce.

15 (c) EXPORT CONTROL POLICY COMMITTEE.—

16 (1) ESTABLISHMENT.—There is established an

17 Export Control Policy Committee (hereafter in this

18 subsection referred to as the ‘‘Committee’’).

19 (2) FUNCTIONS.—The Committee shall—

20 (A) provide policy guidance and advice to

21 the President on export control issues under this

22 title;

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

25 Committee; and
141

•HR 361 RH

1 (C) receive policy recommendations from

2 other departments and agencies and resolve pol3 icy disputes among departments and agencies

4 under this title.

5 (3) MEMBERSHIP.—The Committee shall include

6 the Secretary, the Secretary of Defense, the Secretary

7 of Energy, the heads of other relevant departments,

8 and appropriate officials of the Executive Office of the

9 President.

10 (4) CHAIR.—The Committee shall be chaired by

11 the President or his designee.

12 (5) DELEGATION; OTHER REPRESENTATIVES.—A

13 member of the Committee under paragraph (3) may

14 designate the deputy head of his or her department or

15 agency to serve in his or her absence as a member of

16 the Committee, but this authority may not be dele17 gated to any other individual. The chair may also in18 vite the temporary participation in the Committee’s

19 meetings of representatives from other offices and

20 agencies as appropriate to the issues under consider21 ation.

22 (6) MEETINGS.—The chair of the Committee

23 may call a meeting of the Committee. Meetings shall

24 not be subject to section 552b of title 5, United States

25 Code.
142

•HR 361 RH

1 (d) UNDER SECRETARY OF COMMERCE; ASSISTANT

2 SECRETARIES.—

3 (1) APPOINTMENT.—The President shall appoint,

4 by and with the advice and consent of the Senate, an

5 Under Secretary of Commerce for Export Administra6 tion who shall carry out all functions of the Secretary

7 under this title and other provisions of law relating

8 to national security, as the Secretary may delegate.

9 The President shall appoint, by and with the advice

10 and consent of the Senate, two Assistant Secretaries

11 of Commerce to assist the Under Secretary in carry12 ing out such functions.

13 (2) TRANSITION PROVISIONS.—Those individuals

14 serving in the positions of Under Secretary of Com15 merce for Export Administration and Assistant Sec16 retaries of Commerce under section 15(a) of the Ex17 port Administration Act of 1979, on the day before

18 the date of the enactment of this Act, shall be deemed

19 to have been appointed under paragraph (1), by and

20 with the advice and consent of the Senate, as of such

21 date of enactment.

22 (e) ISSUANCE OF REGULATIONS.—The President and

23 the Secretary may issue such regulations as are necessary

24 to carry out this title. Any such regulations the purpose

25 of which is to carry out section 105, 106, or 111(a) may
143

•HR 361 RH

1 be issued only after the regulations are submitted for review

2 to such departments or agencies as the President considers

3 appropriate. The Secretary shall consult with the appro4 priate export advisory committee appointed under section

5 104(f) in formulating regulations under this title. The sec6 ond sentence of this subsection does not require the concur7 rence or approval of any official, department, or agency

8 to which such regulations are submitted.

9 (f) AMENDMENTS TO REGULATIONS.—If the Secretary

10 proposes to amend regulations issued under this title, the

11 Secretary shall report to the Committee on Banking, Hous12 ing, and Urban Affairs of the Senate and the Speaker of

13 the House of Representatives on the intent and rationale

14 of such amendments. Such report shall evaluate the cost and

15 burden to the United States exporters of the proposed

16 amendments in relation to any enhancement of licensing

17 objectives. The Secretary shall consult with the appropriate

18 export advisory committees appointed under section 104(f)

19 in amending regulations issued under this title.

20 (g) CONFIDENTIALITY OF INFORMATION.—

21 (1) EXEMPTIONS FROM DISCLOSURE.—

22 (A) INFORMATION OBTAINED ON OR BEFORE

23 JUNE 30, 1980.—Except as otherwise provided by

24 the third sentence of section 108(b)(2), informa25 tion obtained under the Export Administration
144

•HR 361 RH

1 Act of 1979 and its predecessor statutes on or be2 fore June 30, 1980, which is deemed confidential,

3 including Shipper’s Export Declarations, or

4 with reference to which a request for confidential

5 treatment is made by the person furnishing such

6 information, shall not be subject to disclosure

7 under section 552 of title 5, United States Code,

8 and such information shall not be published or

9 disclosed unless the Secretary determines that the

10 withholding thereof is contrary to the national

11 interest.

12 (B) INFORMATION OBTAINED AFTER JUNE

13 30, 1980.—Except as otherwise provided by the

14 third sentence of section 108(b)(2), information

15 obtained under this title or under the Export Ad16 ministration Act of 1979 after June 30, 1980,

17 may be withheld from disclosure only to the ex18 tent permitted by statute, except that informa19 tion submitted, obtained, or considered in con20 nection with an application for an export license

21 or other export authorization under the Export

22 Administration Act of 1979 or this title, includ23 ing—

24 (i) the export license or other export

25 authorization itself,
145

•HR 361 RH

1 (ii) classification requests described in

2 section 109(h)(1),

3 (iii) information obtained during the

4 course of an assessment under subsection

5 (k),

6 (iv) information or evidence obtained

7 in the course of any investigation, and

8 (v) information obtained or furnished

9 under this title in connection with inter10 national agreements, treaties, or obligations,

11 shall be withheld from public disclosure and shall

12 not be subject to disclosure under section 552 of

13 title 5, United States Code, unless the release of

14 such information is determined by the Secretary

15 to be in the national interest.

16 (2) INFORMATION TO CONGRESS AND GAO.—

17 (A) IN GENERAL.—Nothing in this title

18 shall be construed as authorizing the withholding

19 of information from the Congress or from the

20 General Accounting Office.

21 (B) AVAILABILITY TO THE CONGRESS.—

22 (i) IN GENERAL.—All information ob23 tained at any time under this title or pre24 vious Acts regarding the control of exports,

25 including any report or license application
146

•HR 361 RH

1 required under this title, shall be made

2 available to any committee or subcommittee

3 of Congress of appropriate jurisdiction upon

4 the request of the chairman or ranking mi5 nority member of such committee or sub6 committee.

7 (ii) PROHIBITION ON FURTHER DIS8 CLOSURE.—No committee, subcommittee, or

9 Member of Congress shall disclose any infor10 mation obtained under this title or previous

11 Acts regarding the control of exports which

12 is submitted on a confidential basis to the

13 Congress under clause (i) unless the full

14 committee to which the information is made

15 available determines that the withholding of

16 the information is contrary to the national

17 interest.

18 (C) AVAILABILITY TO THE GAO.—

19 (i) IN GENERAL.—Notwithstanding

20 paragraph (1), information referred to in

21 subparagraph (B) shall, consistent with the

22 protection of intelligence, counterintel23 ligence, and law enforcement sources, meth24 ods, and activities, as determined by the

25 agency that originally obtained the infor-
147

•HR 361 RH

1 mation, and consistent with the provisions

2 of section 716 of title 31, United States

3 Code, be made available only by the agency,

4 upon request, to the Comptroller General of

5 the United States or to any officer or em6 ployee of the General Accounting Office au7 thorized by the Comptroller General to have

8 access to such information.

9 (ii) PROHIBITION ON FURTHER DIS10 CLOSURES.—No officer or employee of the

11 General Accounting Office shall disclose, ex12 cept to the Congress in accordance with this

13 paragraph, any such information which is

14 submitted on a confidential basis and from

15 which any individual can be identified.

16 (3) INFORMATION EXCHANGE.—Notwithstanding

17 paragraph (1), the Secretary and the Commissioner of

18 Customs shall exchange licensing and enforcement in19 formation with each other which is necessary to facili20 tate enforcement efforts and effective license decisions.

21 (4) PENALTIES FOR DISCLOSURE OF CONFIDEN22 TIAL INFORMATION.—Any officer or employee of the

23 United States, or any department or agency thereof,

24 who publishes, divulges, discloses, or makes known in
148

•HR 361 RH

1 any manner or to any extent not authorized by law

2 any confidential information that—

3 (A) he or she obtains in the course of his or

4 her employment or official duties or by reason of

5 any examination or investigation made by, or

6 report or record made to or filed with, such de7 partment or agency, or officer or employee there8 of, and

9 (B) is exempt from disclosure under this

10 subsection,

11 shall be fined not more than $10,000, or imprisoned

12 not more than one year, or both, shall be removed

13 from office or employment, and shall be subject to a

14 civil penalty of not more than $1,000 imposed by the

15 Secretary under section 110(c).

16 (h) AUTHORITY FOR SEMINAR AND PUBLICATIONS

17 FUND.—The Secretary is authorized to cooperate with pub18 lic agencies, other governments, international organiza19 tions, private individuals, private associations, and other

20 groups in connection with seminars, publications, and re21 lated activities to carry out export activities, including edu22 cating the public or government officials on the application

23 of this title and the regulations issued under this title. The

24 Secretary is further authorized to accept contributions of

25 funds, property, or services in connection with such activi-
149

•HR 361 RH

1 ties to recover the cost of such programs and activities. Con2 tributions may include payments for materials or services

3 provided as part of such activities. The contributions col4 lected may be retained for use in covering the costs of such

5 activities, and for providing information to the public with

6 respect to this title and other export control programs of

7 the United States and other governments.

8 (i) SUPPORT OF OTHER COUNTRIES’ EXPORT CON9 TROL PROGRAM.—The Secretary is authorized to partici10 pate in and provide training to officials of other countries

11 on the principles and procedures for the implementation of

12 effective export controls and may participate in any such

13 training provided by other departments and agencies of the

14 United States.

15 (j) INCORPORATED COMMODITIES AND TECH16 NOLOGY.—

17 (1) COMMODITIES CONTAINING CONTROLLED

18 PARTS AND COMPONENTS.—Controls may not be im19 posed under this title or any other provision of law

20 for a commodity solely because the commodity con21 tains parts or components subject to export controls

22 under this title if such parts or components—

23 (A) are essential to the functioning of the

24 commodity,
150

•HR 361 RH

1 (B) are customarily included in sales of the

2 commodity in countries other than controlled

3 countries, and

4 (C) comprise 25 percent or less of the total

5 value of the commodity,

6 unless the commodity itself, if exported, would by vir7 tue of the functional characteristics of the commodity

8 as a whole make a significant contribution to the

9 military or proliferation potential of a controlled

10 country or end user which would prove detrimental to

11 the national security of the United States.

12 (2) REEXPORTS OF FOREIGN-MADE ITEMS INCOR13 PORATING U.S. ITEMS.—

14 (A) COMMODITIES.—(i) No authority or

15 permission may be required under section 105 or

16 section 106 to reexport to a country other than

17 a terrorist country or an embargoed country a

18 commodity that is produced in a country other

19 than the United States and incorporates com20 modities that are subject to the jurisdiction of the

21 United States, if the value of the controlled Unit22 ed States content of the commodity produced in

23 such other country is 25 percent or less of the

24 total value of the commodity.
151

•HR 361 RH

1 (ii) No authority or permission may be re2 quired under section 105 or section 106 to reex3 port to a terrorist country or to an embargoed

4 country a commodity that is produced in a

5 country other than the United States and incor6 porates commodities that are subject to the juris7 diction of the United States, if the value of the

8 controlled United States content of the commod9 ity produced in such other country is 10 percent

10 or less of the total value of the commodity.

11 (B) TECHNOLOGY.—(i) No authority or per12 mission may be required under section 105 or

13 section 106 to reexport to a country other than

14 a terrorist country or an embargoed country

15 technology that is produced in a country other

16 than the United States and is commingled with

17 or drawn from technology that is produced in the

18 United States, if the value of the controlled Unit19 ed States content of the technology produced in

20 such other country is 25 percent or less of the

21 total value of the technology.

22 (ii) No authority or permission may be re23 quired under section 105 or section 106 to reex24 port to a terrorist country or an embargoed

25 country technology that is produced in a country
152

•HR 361 RH

1 other than the United States and is commingled

2 with or drawn from technology that is produced

3 in the United States, if the value of the con4 trolled United States content of the technology

5 produced in such other country is 10 percent or

6 less of the total value of the technology.

7 (C) DEFINITIONS.—For purposes of this

8 paragraph—

9 (i) the ‘‘controlled United States con10 tent’’ of a commodity or technology means

11 those commodities or technology that—

12 (I) are subject to the jurisdiction

13 of the United States;

14 (II) are incorporated into the

15 commodity or technology; and

16 (III) would, at the time of the re17 export, require a license under section

18 105 or 106 if exported from the United

19 States to a country to which the com20 modity or technology is to be reex21 ported;

22 (ii) an ‘‘embargoed country’’ is a coun23 try against which an embargo is in effect

24 under the Trading with the Enemy Act, the
153

•HR 361 RH

1 International Emergency Economic Powers

2 Act, or other provision of law; and

3 (iii) a ‘‘terrorist country’’ is a country

4 with respect to which a determination is in

5 effect that was made under section

6 106(i)(1)(A) of this Act, or section

7 6(j)(1)(A) of the Export Administration Act

8 of 1979, that the government of such coun9 try has repeatedly provided support for acts

10 of international terrorism.

11 (3) TREATMENT OF TECHNOLOGY AND SOURCE

12 CODE.—For purposes of this subsection, technology

13 and source code used to design or produce foreign14 made commodities are not deemed to be incorporated

15 into such foreign-made commodities.

16 (4) REPORTING REQUIREMENTS.—Notwithstand17 ing paragraphs (1) through (3), the Secretary may

18 require persons to report to the Department of Com19 merce their proposed calculations and underlying

20 data sufficient for the Department of Commerce to

21 evaluate the adequacy of those calculations and data

22 related to commodities and technology before a re23 exporter may rely upon the exclusions from controls

24 provided in this subsection.
154

•HR 361 RH

1 (5) EXCEPTIONS.—Paragraphs (1) and (2) do

2 not require any changes to regulations in effect on the

3 effective date of this title and, notwithstanding para4 graphs (1) and (2), controls may be imposed on com5 modities or technology transferred, after March 1,

6 1996, from export control under the Arms Export

7 Control Act to control under this title if those com8 modities or technology are designated by the President

9 for exemption from paragraph (1) or (2), as the case

10 may be.

11 (k) UNFAIR IMPACT ON UNITED STATES EXPORTER.—

12 (1) POLICY.—It is the policy of the United

13 States that no United States exporter should be af14 fected unfairly by export control policies or practices

15 unless relief from such controls would create a signifi16 cant risk to the foreign policy, nonproliferation, or

17 national security interests of the United States.

18 (2) RELIEF FROM EXPORT CONTROLS.—(A) A

19 person may petition the Secretary for relief from cur20 rent export control requirements (other than control

21 requirements specifically imposed by this title or

22 other provisions of law) on the basis of foreign avail23 ability. A person may also petition the Secretary for

24 approval of an export license application on other

25 grounds which the Secretary, with the concurrence of
155

•HR 361 RH

1 the Secretary of Defense, shall establish by regulation.

2 The Secretary shall, upon receipt of such petitions,

3 and may, on his or her initiative, conduct assess4 ments for providing relief based upon these grounds.

5 (B) For purposes of this subsection, foreign

6 availability exists when the controlled item is avail7 able in fact, under terms and conditions established

8 by the Secretary with the concurrence of the Secretary

9 of Defense, to controlled countries or end users from

10 sources outside the United States so that the require11 ment for a license is or would be ineffective in achiev12 ing the purpose of the control.

13 (3) PROVISIONS FOR RELIEF.—The Secretary, in

14 consultation with appropriate departments and agen15 cies, shall make determinations of facts under para16 graph (2), addressing, in the case of a petition filed

17 under paragraph (2), each ground for relief asserted

18 in the petition, and, subject to paragraph (4), shall

19 provide at least one of the following forms of relief to

20 persons that meet the criteria in paragraph (2):

21 (A) Change the control status of, or licens22 ing requirements on, all or some of the items in

23 question so as to eliminate the unfair impact.

24 (B) Selectively approve the sale of controlled

25 items so as to eliminate the unfair impact.
156

•HR 361 RH

1 (C) Seek multilateral support to eliminate

2 the source of unfair impact. If relief under this

3 subparagraph is chosen and if such efforts fail to

4 achieve multilateral support, then the Secretary,

5 not later than 330 days from the date of the Sec6 retary’s initiation of the assessment under para7 graph (2), shall provide other relief pursuant to

8 subparagraph (A) or (B) or conclude pursuant to

9 paragraph (4) that the granting of such relief

10 would create a significant risk to United States

11 nonproliferation, foreign policy, or national se12 curity interests.

13 A determination that a petitioner qualifies for relief

14 under paragraph (2) shall not compel the United

15 States to remove controls from an item that remains

16 subject to control by a multilateral regime.

17 (4) EXCEPTIONS FROM RELIEF.—The Secretary

18 shall provide relief under paragraph (3) to a peti19 tioner who qualifies for relief under paragraph (2)

20 unless the Secretary concludes that the granting of

21 such relief would create a significant risk to United

22 States nonproliferation, foreign policy, or national se23 curity interests. In the event the Secretary determines

24 to grant such relief, he or she may do so unless the

25 President determines that such relief would create a
157

•HR 361 RH

1 significant risk to the foreign policy, nonproliferation,

2 or national security interests of the United States.

3 (5) PROCEDURES.—

4 (A) PUBLICATION.—In any case in which

5 the President or the Secretary determines that

6 relief under paragraph (3) will not be granted,

7 notwithstanding the existence of facts that con8 stitute a basis for granting relief, the Secretary

9 shall publish that determination, together with a

10 concise statement of its basis and the estimated

11 economic impact of the decision.

12 (B) NOTICE OF ASSESSMENTS.—Whenever

13 the Secretary undertakes an assessment under

14 paragraph (2), the Secretary shall publish in the

15 Federal Register notice of the initiation of such

16 assessment.

17 (C) PROCEDURES FOR MAKING DETERMINA18 TIONS.—During the conduct of an assessment

19 under this subsection, the Secretary shall consult

20 with other appropriate departments and agencies

21 concerning the assessment. The Secretary shall

22 make a determination as to whether relief is re23 quired under paragraph (2) within 120 days

24 after the date of the Secretary’s receipt of the pe25 tition requesting relief or the date of the Sec-
158

•HR 361 RH

1 retary’s initiation of the assessment (as the case

2 may be) and shall so notify the applicant. If the

3 Secretary has determined that relief is appro4 priate, the Secretary shall, upon making such a

5 determination, submit the determination for re6 view to the Department of Defense and other ap7 propriate departments and agencies for consulta8 tions regarding the findings and the relief se9 lected. If the Secretary of Defense or other de10 partment or agency head disagrees with the Sec11 retary’s determination, he or she may appeal the

12 determination to the President in writing, but

13 only on the basis of the criteria set forth in

14 paragraph (4). The President shall resolve any

15 such disagreement so that, in all cases, not later

16 than 150 days after the date of the Secretary’s

17 receipt of the petition requesting relief or the

18 date of the Secretary’s initiation of the assess19 ment (as the case may be), the Secretary re20 sponds in writing to the petitioner and submits

21 for publication in the Federal Register, that—

22 (i) unfair impact exists and—

23 (I) the requirement of a license

24 has been removed;
159

•HR 361 RH

1 (II) the control status of all or

2 some of the items in question has been

3 changed so as to eliminate the unfair

4 impact;

5 (III) the sale of controlled items

6 has been approved so as to eliminate

7 the unfair impact;

8 (IV) export controls under this

9 title are to be maintained notwith10 standing the finding under paragraph

11 (2); or

12 (V) the United States rec13 ommendation to remove the license re14 quirement or change the control status

15 will be submitted to a relevant multi16 lateral regime for consideration for a

17 period of not more than 180 days be18 ginning on the date of the publication;

19 or

20 (ii) a right to relief under paragraph

21 (2) does not exist.

22 The reasons for maintaining export controls

23 under clause (i)(IV) shall be included in the sub24 mission to the petitioner and the publication. In

25 any case in which the submission for publication
160

•HR 361 RH

1 is not made within the 150-day period required

2 by this subparagraph, the Secretary may not

3 thereafter require a license for the export of items

4 that are the subject of the allegation under para5 graph (2).

6 (D) NEGOTIATIONS TO ELIMINATE UNFAIR

7 IMPACT.—(i) In any case in which export con8 trols are maintained under this section pursuant

9 to paragraph (4) despite a determination of un10 fair impact, the Secretary of State shall actively

11 pursue negotiations with the governments of the

12 appropriate foreign countries for the purpose of

13 eliminating the unfair impact. No later than the

14 commencement of such negotiations, the Sec15 retary of State shall notify the Congress in writ16 ing that the Secretary of State has begun such

17 negotiations and why it is important that export

18 controls on the items involved be maintained to

19 avoid a significant risk to the foreign policy,

20 nonproliferation, or national security interests of

21 the United States.

22 (ii) Whenever the Secretary of State has

23 reason to believe that items subject to export con24 trols by the United States may become available

25 in fact from other countries to controlled coun-
161

•HR 361 RH

1 tries and that such availability can be prevented

2 or eliminated by means of negotiations with such

3 other countries, the Secretary of State shall

4 promptly initiate negotiations with the govern5 ments of such other countries to prevent such for6 eign availability.

7 (6) SHARING OF INFORMATION.—Each depart8 ment or agency of the United States, including any

9 intelligence agency, and all contractors with any such

10 department or agency, shall, upon the request of the

11 Secretary and consistent with the protection of intel12 ligence sources and methods, furnish information to

13 the Department of Commerce concerning foreign

14 availability of items subject to export controls under

15 this title. Consistent with the protection of intelligence

16 sources and methods and classification restrictions,

17 each such department or agency shall allow the De18 partment of Commerce access to such information

19 from a laboratory or other facility within such de20 partment or agency.

21 (7) CONGRESSIONAL NOTIFICATION AND REPORT22 ING REQUIREMENTS.—The Secretary shall each year

23 notify the Congress of all petitions for relief under

24 this subsection and the status of all such petitions.
162

•HR 361 RH

1 (l) EXCEPTIONS FOR MEDICAL AND HUMANITARIAN

2 PURPOSES.—This title does not authorize controls on—

3 (1) medicine or medical supplies; or

4 (2) donations of items that are intended to meet

5 basic human needs, including food, educational mate6 rials, seeds, hand tools, water resources equipment,

7 clothing and shelter materials, and basic household

8 supplies.

9 (m) SANCTITY OF EXISTING CONTRACTS AND LI10 CENSES.—

11 (1) IN GENERAL.—In the case of a control im12 posed under section 106 on the export of any items,

13 the President may not prohibit the export of those

14 items—

15 (A) in performance of a contract, agree16 ment, or other contractual commitment entered

17 into before the date on which the control is ini18 tially imposed, or the date on which the Presi19 dent reports to the Congress the President’s in20 tention to impose the control, whichever date oc21 curs first, or

22 (B) under a license or other authorization

23 issued under this title before the date on which

24 the control is initially imposed, or the date on

25 which the President reports to the Congress the
163

•HR 361 RH

1 President’s intention to impose the control,

2 whichever date occurs first.

3 (2) EXCEPTION.—The prohibition in paragraph

4 (1) shall not apply if the President determines and

5 certifies to the Congress that—

6 (A) a breach of the peace poses a serious

7 and direct threat to the strategic interest of the

8 United States;

9 (B) the prohibition of exports under each

10 such contract, agreement, commitment, license,

11 or authorization will be directly instrumental in

12 remedying the situation posing the direct threat;

13 and

14 (C) the export controls will continue only so

15 long as the direct threat persists.

16 The authority of the President to make determina17 tions under this paragraph may not be delegated.

18 (n) PUBLICATION OF DECISIONS AND ACTIONS OF THE

19 SECRETARY.—

20 (1) IN GENERAL.—The Secretary shall publish in

21 the Federal Register, to the greatest extent practicable,

22 actions, procedures, and decisions of the Secretary

23 under this title, taking into account restrictions on

24 disclosure of classified or confidential information.

25 The Secretary shall publish in the Federal Register
164

•HR 361 RH

1 calculations by the Secretary of commonly-used con2 trol index parameters for commodities and tech3 nologies, including all officially accepted composite

4 theoretical performance calculations for computers

5 and microprocessors, except in a case in which a pri6 vate party requested the calculation and asked that it

7 not be published.

8 (2) NOTICE OF REVISIONS.—Whenever the Sec9 retary makes any revision in the control index with

10 respect to any commodity or technology, or with re11 spect to any country or destination affected by con12 trols imposed under section 105 or section 106, the

13 Secretary shall publish in the Federal Register a no14 tice of such revision and shall specify in such notice

15 under which authority the revision is being made.

16 (o) NOTIFICATION OF THE PUBLIC; CONSULTATION

17 WITH INDUSTRY; RECORDKEEPING.—

18 (1) NOTIFICATION OF THE PUBLIC.—The Sec19 retary shall keep the public fully apprised of changes

20 in export control policy and procedures instituted

21 under this title with a view to encouraging trade.

22 (2) CONSULTATION WITH INDUSTRY.—The Sec23 retary shall meet regularly with export advisory com24 mittees appointed under section 104(f) in order to ob25 tain their views on United States export control pol-
165

•HR 361 RH

1 icy and the foreign availability of commodities and

2 technology.

3 (p) EXPORT CONTROL DUTIES.—

4 (1) ASSIGNMENT.—The Secretary shall ensure

5 that at least one full-time representative of the De6 partment of Commerce stationed in the People’s Re7 public of China has duties related to the implementa8 tion of export controls under this title. These duties

9 shall include giving priority to conducting

10 postshipment verifications and prelicense checks, and

11 to using other means to ensure that United States ex12 ports from the United States of dual use items are not

13 diverted to unauthorized end uses or end users.

14 (2) OTHER RESOURCES.—The Secretary shall

15 ensure that appropriate resources are made available

16 and, if necessary, new procedures established to assist

17 the representative or representatives of the Depart18 ment of Commerce referred to in paragraph (1) in

19 carrying out their duties and to ensure that sensitive

20 items are not diverted to inappropriate end uses or

21 end users in the People’s Republic of China. Efforts

22 to carry out this paragraph shall include appropriate

23 coordination with United States officials in Hong

24 Kong to ensure that sensitive items exported to Hong

25 Kong are protected from diversion.
166

•HR 361 RH

1 (3) AUTHORIZATION OF APPROPRIATIONS.—

2 There are authorized to be appropriated such sums as

3 may be necessary to carry out paragraph (1).

4 (q) AUTHORIZATION FOR TECHNICAL DATA.—A li5 cense authorizing the export of any commodities or tech6 nology under this title shall also authorize the export of op7 eration technical data related to such commodities or tech8 nology, if the technical level of the data does not exceed the

9 minimum necessary to install, repair, maintain, inspect,

10 operate, or use the commodities or technology.

11 (r) LICENSES FOR SPARE PARTS NOT REQUIRED.—

12 A license shall not be required under this title for replace13 ment parts which are exported to replace on a one-for-one

14 basis parts that were in a commodity that was lawfully

15 exported from the United States, unless the President deter16 mines that such a license should be required for such parts.

17 SEC. 115. ANNUAL REPORT.

18 (a) CONTENTS.—Not later than March 1 of each year,

19 the Secretary shall submit to the Congress a report on the

20 administration of this title during the preceding calendar

21 year. All agencies shall cooperate fully with the Secretary

22 in providing information for such report. Such report shall

23 include detailed information on the following:

24 (1) The implementation of the policies set forth

25 in section 103, including delegations of authority by
167

•HR 361 RH

1 the President under section 104(d), consultations with

2 the export advisory committees established under sec3 tion 104(f), and any changes in the exercise of the au4 thorities contained in sections 105(a), 106(a), 107(a),

5 and 108(a).

6 (2) With respect to multilateral export controls

7 imposed or maintained under section 105, the follow8 ing:

9 (A) Adjustments to multilateral export con10 trols.

11 (B) The exercise of the Secretary’s authority

12 under section 105(e).

13 (3) Determinations made under section 114(k),

14 the criteria used to make such determinations, the re15 moval of any export controls under such section, and

16 any evidence demonstrating a need to maintain ex17 port controls notwithstanding determinations made

18 under paragraph (2) of section 114(k).

19 (4) Short supply controls and monitoring under

20 section 107.

21 (5) Organizational and procedural changes un22 dertaken in furtherance of the policies set forth in this

23 title, including changes to increase the efficiency of

24 the export licensing process and to fulfill the require25 ments of section 109, including an accounting of ap-
168

•HR 361 RH

1 peals received, and actions taken pursuant thereto,

2 under section 109(g).

3 (6) Violations under section 110 and enforcement

4 activities under section 113.

5 (7) The issuance of regulations under this title.

6 (8) The results, in as much detail as may be in7 cluded consistent with the strategic and political in8 terests of the United States and the need to maintain

9 the confidentiality of proprietary information, of the

10 reviews of the multilateral control list, and any revi11 sions to the list resulting from such reviews, required

12 by section 105.

13 (b) COMPARATIVE REPORT ON EXPORT CONTROL SYS14 TEMS AMONG COUNTRIES.—The Secretary shall include, in

15 each annual report under subsection (a), a description of

16 significant differences between the export control laws and

17 regulations of the United States and its major trade com18 petitors, particularly as these differences relate to the imple19 mentation of multilateral export control regimes. The Sec20 retary shall include—

21 (1) an assessment of the impact of these dif22 ferences on important interests of the United States;

23 (2) a description of the extent to which the execu24 tive branch intends to address these differences; and
169

•HR 361 RH

1 (3) a listing of unilateral controls and embargoes

2 imposed by the United States that are in effect, with

3 a quantification of their economic impact, including

4 the effect of such controls and embargoes on employ5 ment in the United States.

6 (c) GAO REPORT.—The Comptroller General shall

7 prepare and submit to the Congress, not later than 120 days

8 after each report under subsection (b) is submitted, an anal9 ysis of such report.

10 SEC. 116. DEFINITIONS.

11 As used in this title:

12 (1) AFFILIATE.—The term ‘‘affiliate’’ includes

13 both governmental entities and commercial entities

14 that are controlled in fact by a country.

15 (2) ADHERENT.—An ‘‘adherent’’ to a multilat16 eral regime is a country that is a member of that re17 gime or that, pursuant to an international under18 standing to which the United States is a party, con19 trols exports in accordance with the criteria and

20 standards of that regime.

21 (3) AUSTRALIA GROUP.—The term ‘‘Australia

22 Group’’ means the multilateral regime in which the

23 United States participates that seeks to prevent the

24 proliferation of chemical and biological weapons.
170

•HR 361 RH

1 (4) CHEMICAL WEAPONS CONVENTION.—The

2 term ‘‘Chemical Weapons Convention’’ refers to the

3 Convention on the Prohibition of the Development,

4 Production, Stockpiling and Use of Chemical Weap5 ons and on Their Destruction of 1992.

6 (5) COMMODITY.—The term ‘‘commodity’’ means

7 any article, natural or manmade substance, material,

8 software, source code, supply, or manufactured prod9 uct, including inspection and test equipment, and ex10 cluding technical data.

11 (6) CONTROL OR CONTROLLED.—The terms ‘‘con12 trol’’ and ‘‘controlled’’ refer to a licensing require13 ment, a written reexport authorization requirement,

14 or a prohibition on an export.

15 (7) CONTROL INDEX.—The term ‘‘control index’’

16 means the United States Commodity Control Index

17 established under section 104(b)(1).

18 (8) CONTROLLED COUNTRY.—The term ‘‘con19 trolled country’’ means a country to which exports

20 are controlled under section 105 or 106.

21 (9) EXPORT.—(A) The term ‘‘export’’—

22 (i) means—

23 (I) an actual shipment, transfer, or

24 transmission of items out of the United

25 States; and
171

•HR 361 RH

1 (II) a transfer to any person of items

2 either within the United States or outside of

3 the United States with the knowledge or in4 tent that the items will be shipped, trans5 ferred, or transmitted outside the United

6 States; and

7 (ii) includes the term ‘‘reexport’’.

8 (B) The Secretary may further define the term

9 export by regulation to include, among other concepts,

10 that—

11 (i) a transfer of items in the United States

12 to an embassy or affiliate of a country is an ex13 port to the country,

14 (ii) disclosure of technology to a foreign per15 son is deemed to be an export to the country of

16 which he or she is a national, and

17 (iii) transfer of effective control from one

18 country to another over a satellite above the

19 earth is an export from one country to another.

20 (C) As used in this paragraph, the term ‘‘foreign

21 person’’ means—

22 (i) an individual who is not a United

23 States citizen or an alien lawfully admitted for

24 permanent residence to the United States;
172

•HR 361 RH

1 (ii) any corporation, partnership, business

2 association, society, trust, organization, or other

3 nongovernmental entity created or organized

4 under the laws of a foreign country or that has

5 its principal place of business outside the United

6 States; and

7 (iii) any governmental entity of a foreign

8 country that is operating as a business enter9 prise.

10 (10) EXPORT CONTROL REGIME, MULTILATERAL

11 EXPORT CONTROL REGIME, MULTILATERAL REGIME,

12 AND REGIME.—The terms ‘‘export control regime’’,

13 ‘‘multilateral export control regime’’, ‘‘multilateral re14 gime’’, and ‘‘regime’’ each means an international

15 agreement or an arrangement among two or more

16 countries, including the United States, a purpose of

17 which is to coordinate national export control policies

18 of participating countries regarding certain items.

19 Such terms include the Australia Group, the

20 Wassenaar Arrangement, the MTCR, and the Nuclear

21 Supplies Group.

22 (11) FOREIGN AVAILABILITY, AVAILABLE IN FACT

23 TO CONTROLLED COUNTRIES.—The terms ‘‘foreign

24 availability’’ and ‘‘available in fact to controlled
173

•HR 361 RH

1 countries’’ each include production or availability of

2 any item from any country—

3 (A) in which the item is not restricted for

4 export to any controlled country; or

5 (B) in which such export restrictions are

6 determined by the Secretary to be ineffective.

7 For purposes of subparagraph (B), the mere inclusion

8 of items on a list of items subject to export controls

9 imposed pursuant to a multilateral export control re10 gime shall not alone constitute credible evidence that

11 the government of a country provides an effective

12 means of controlling the export of such items to con13 trolled countries.

14 (12) ITEM.—The term ‘‘item’’ means any com15 modity, technology, or other information.

16 (13) LICENSING REQUIREMENT.—The term ‘‘li17 censing requirement’’ includes any restriction or con18 dition, including recordkeeping and reporting, im19 posed by the Secretary under this title in licensing

20 the export of a commodity, technology, or other infor21 mation.

22 (14) MEMBER OF AN EXPORT CONTROL RE23 GIME.—A ‘‘member’’ of an export control regime,

24 multilateral export control regime, multilateral re-
174

•HR 361 RH

1 gime, or regime is a country that participates in that

2 regime.

3 (15) MISSILE.—The term ‘‘missile’’ means any

4 missile system or component listed in category I of

5 the MTCR Annex, and any other unmanned delivery

6 system or component of similar capability, as well as

7 the specially designed production facilities for these

8 systems.

9 (16) MISSILE TECHNOLOGY CONTROL REGIME;

10 MTCR.—The term ‘‘Missile Technology Control Re11 gime’’ or ‘‘MTCR’’ means the policy statement and

12 guidelines between the United States, the United

13 Kingdom, the Federal Republic of Germany, France,

14 Italy, Canada, and Japan, announced on April 16,

15 1987, to restrict sensitive missile-related transfers

16 based on the MTCR Annex, and any amendments

17 thereto.

18 (17) MTCR ANNEX.—The term ‘‘MTCR Annex’’

19 means the Equipment and Technology Annex of the

20 MTCR, and any amendments thereto.

21 (18) NUCLEAR EXPLOSIVE DEVICE.—The term

22 ‘‘nuclear explosive device’’ means any device, whether

23 assembled or disassembled, that is designed to produce

24 an instantaneous release of an amount of nuclear en25 ergy from special nuclear material that is greater
175

•HR 361 RH

1 than the amount of energy that would be released

2 from the detonation of one pound of trinitrotoluene

3 (TNT).

4 (19) NUCLEAR SUPPLIERS’ GROUP.—The term

5 ‘‘Nuclear Suppliers’ Group’’ means the multilateral

6 arrangement in which the United States participates

7 whose purpose is to restrict the transfers of items with

8 relevance to the nuclear fuel cycle or nuclear explosive

9 applications.

10 (20) PERSON.—Except as provided in section

11 111, the term ‘‘person’’ includes—

12 (A) the singular and the plural and any in13 dividual, partnership, corporation, business asso14 ciation, society, trust, organization, or any other

15 group created or organized under the laws of a

16 country; and

17 (B) any government, or any governmental

18 body, corporation, trust, agency, department, or

19 group, operating as a business enterprise.

20 (21) REEXPORT.—The term ‘‘reexport’’ means

21 the shipment, transfer, transshipment, or diversion of

22 items from one foreign country to another.

23 (22) SECRETARY.—The term ‘‘Secretary’’ means

24 the Secretary of Commerce or any successor officer
176

•HR 361 RH

1 performing functions of the Secretary of Commerce

2 under this title.

3 (23) TECHNOLOGY.—The term ‘‘technology’’

4 means specific information that is necessary for the

5 development, production, or use of a commodity, in6 cluding source code, and that takes the form of tech7 nical data or technical assistance.

8 (24) UNILATERAL AND UNILATERALLY.—The

9 terms ‘‘unilateral’’ and ‘‘unilaterally’’, with respect to

10 an export control on a commodity or technology, refer

11 to a control that is not similarly imposed in similar

12 circumstances by any country other than the United

13 States, and that materially restricts the export of the

14 commodity or technology.

15 (25) UNITED STATES.—The term ‘‘United

16 States’’ means the States of the United States, the

17 District of Columbia, and any commonwealth, terri18 tory, dependency, or possession of the United States,

19 and includes the Outer Continental Shelf, as defined

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

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

22 (26) UNITED STATES PERSON.—The term ‘‘Unit23 ed States person’’ means any United States citizen,

24 resident, or national (other than an individual resi25 dent outside the United States and employed by other
177

•HR 361 RH

1 than a United States person), any domestic concern

2 (including any permanent domestic establishment of

3 any foreign concern) and any foreign subsidiary or

4 affiliate (including any permanent foreign establish5 ment) of any domestic concern which is controlled in

6 fact by such domestic concern, as determined under

7 regulations of the President.

8 (27) WASSENAAR ARRANGEMENT.—The term

9 ‘‘Wassenaar Arrangement’’ means the multilateral re10 gime in which the United States participates that

11 seeks to promote transparency and responsibility with

12 regard to the transfers of conventional armaments

13 and sensitive dual-use goods and technologies.

14 (28) WEAPON OF MASS DESTRUCTION.—The term

15 ‘‘weapon of mass destruction’’ means any chemical,

16 biological, or nuclear weapon, including a nuclear ex17 plosive device.

18 SEC. 117. EFFECTS ON OTHER ACTS.

19 (a) COMMODITY JURISDICTION.—

20 (1) COORDINATION OF CONTROLS.—The author21 ity granted under this title and under section 38 of

22 the Arms Export Control Act (22 U.S.C. 2778) shall

23 be exercised in such a manner as to achieve effective

24 coordination between the licensing systems under this
178

•HR 361 RH

1 title and such section 38 and to share information re2 garding the trustworthiness of parties.

3 (2) ELIMINATION OF OVERLAPPING CONTROLS.—

4 Notwithstanding any other provision of law, no item

5 may be included on both the control index and the

6 United States Munitions List after the date of the en7 actment of this Act.

8 (3) COMMODITY JURISDICTION DISPUTE RESOLU9 TION.—The President shall establish procedures for

10 the resolution of commodity jurisdiction disputes

11 among departments and agencies of the United

12 States. Such disputes shall normally be resolved with13 in 60 days, and the procedures shall allow disputes

14 to be referred to the President normally within 90

15 days. These procedures shall also—

16 (A) require the Secretary and the Secretary

17 of State to refer matters to each other in accord18 ance with their respective jurisdictions;

19 (B) require transparency, among the Sec20 retary, the Secretary of State, and the Secretary

21 of Defense, in commodity jurisdiction cases and

22 commodity classification requests and deter23 minations;
179

•HR 361 RH

1 (C) provide for interagency meetings and

2 consultations to permit the free exchange of views

3 regarding significant jurisdictional issues; and

4 (D) provide deadlines for action and stand5 ards for decision, and ensure that disputes that

6 cannot be resolved may be referred to the Presi7 dent by the Secretary of State, the Secretary of

8 Defense, or the Secretary.

9 (b) IN GENERAL.—Except as otherwise provided in

10 this title, nothing in this title shall be construed to modify,

11 repeal, supersede, or otherwise affect the provisions of any

12 other laws authorizing control over exports of any commod13 ities, technology, or other information.

14 (c) LICENSING PROCESS.—The provisions of section

15 109 shall supersede the procedures published pursuant to

16 section 309(c) of the Nuclear Non-Proliferation Act of 1978

17 (42 U.S.C. 2139a(c)) to the extent such procedures are in18 consistent with the provisions of section 109.

19 (d) AMENDMENTS TO THE INTERNATIONAL EMER20 GENCY ECONOMIC POWERS ACT.—

21 (1) EXERCISE OF PRESIDENTIAL AUTHORITY.—

22 (A) Section 204(b) of the International Emergency

23 Economic Powers Act (50 U.S.C. 1703(b)) is amend24 ed—
180

•HR 361 RH

1 (i) by striking ‘‘and’’ at the end of para2 graph (4);

3 (ii) by striking the period at the end of

4 paragraph (5) and inserting ‘‘; and’’; and

5 (iii) by adding at the end the following:

6 ‘‘(6) if the action is being taken unilaterally—

7 ‘‘(A) why the President believes the action is

8 necessary to meet the unusual and extraordinary

9 threat referred to in paragraph (2); and

10 ‘‘(B) what steps the President is taking to

11 gain multilateral support for the action.’’.

12 (B) Section 204(c) of that Act (50 U.S.C.

13 1703(c)) is amended—

14 (i) by striking ‘‘(5)’’ and inserting ‘‘(6)’’;

15 and

16 (ii) by striking the period and inserting ‘‘,

17 and, in the case of controls referred to in para18 graph (6) of subsection (b), the President shall

19 report to the Congress on the economic losses that

20 have occurred as a result of the unilateral ac21 tion’’.

22 (2) CONFIDENTIALITY OF INFORMATION.—The

23 International Emergency Economic Powers Act is

24 amended—
181

•HR 361 RH

1 (A) by redesignating section 208 as section

2 209; and

3 (B) by inserting after section 207 the fol4 lowing:

5 ‘‘SEC. 208. CONFIDENTIALITY OF INFORMATION.

6 ‘‘(a) EXEMPTIONS FROM DISCLOSURE.—Information

7 obtained under this title before or after the enactment of

8 this section may be withheld only to the extent permitted

9 by statute, except that information submitted, obtained, or

10 considered in connection with any transaction that would

11 otherwise be prohibited under this title, including—

12 ‘‘(1) the license or other authorization itself,

13 ‘‘(2) classification requests or other inquiries on

14 the applicability of export license requirements to a

15 proposed transaction or series of transactions,

16 ‘‘(3) information or evidence obtained in the

17 course of any investigation, and

18 ‘‘(4) information obtained or furnished under

19 this title in connection with international agreements,

20 treaties, or obligations,

21 shall be withheld from public disclosure, and shall not be

22 subject to disclosure under section 552 of title 5, United

23 States Code, unless the release of such information is deter24 mined by the Secretary of Commerce or the Secretary of

25 the Treasury to be in the national interest. In the case of
182

•HR 361 RH

1 information obtained or furnished under this title in con2 nection with international agreements, treaties, or obliga3 tions, such a determination may be made only after con4 sultation with the Secretary of State.

5 ‘‘(b) INFORMATION TO CONGRESS AND GAO.—

6 ‘‘(1) IN GENERAL.—Nothing in this title shall be

7 construed as authorizing the withholding of informa8 tion from the Congress or from the General Account9 ing Office.

10 ‘‘(2) AVAILABILITY TO THE CONGRESS.—

11 ‘‘(A) IN GENERAL.—All information ob12 tained at any time under this title regarding the

13 control of exports, including any report or li14 cense application required under this title, shall

15 be made available to any committee or sub16 committee of Congress of appropriate jurisdic17 tion upon the request of the chairman or ranking

18 minority member of such committee or sub19 committee.

20 ‘‘(B) PROHIBITION ON FURTHER DISCLO21 SURE.—No committee, subcommittee, or Member

22 of Congress shall disclose any information ob23 tained under this title or previous Acts regarding

24 the control of exports which is submitted on a

25 confidential basis to the Congress under subpara-
183

•HR 361 RH

1 graph (A) unless the full committee to which the

2 information is made available determines that

3 the withholding of the information is contrary to

4 the national interest.

5 ‘‘(3) AVAILABILITY TO THE GAO.—

6 ‘‘(A) IN GENERAL.—Notwithstanding para7 graph (1), information referred to in paragraph

8 (2) shall, consistent with the protection of intel9 ligence, counterintelligence, and law enforcement

10 sources, methods, and activities, as determined

11 by the agency that originally obtained the infor12 mation, and consistent with the provisions of

13 section 716 of title 31, United States Code, be

14 made available only by the agency, upon request,

15 to the Comptroller General of the United States

16 or to any officer or employee of the General Ac17 counting Office authorized by the Comptroller

18 General to have access to such information.

19 ‘‘(B) PROHIBITION ON FURTHER DISCLO20 SURES.—No officer or employee of the General

21 Accounting Office shall disclose, except to the

22 Congress in accordance with this subsection, any

23 such information which is submitted on a con24 fidential basis and from which any individual

25 can be identified.
184

•HR 361 RH

1 ‘‘(c) PENALTIES FOR DISCLOSURE OF CONFIDENTIAL

2 INFORMATION.—Any officer or employee of the United

3 States, or any department or agency thereof, who publishes,

4 divulges, discloses, or makes known in any manner or to

5 any extent not authorized by law any confidential informa6 tion that—

7 ‘‘(1) he or she obtains in the course of his or her

8 employment or official duties or by reason of any ex9 amination or investigation made by, or report or

10 record made to or filed with, such department or

11 agency, or officer or employee thereof, and

12 ‘‘(2) is exempt from disclosure under this section,

13 shall be fined not more than $10,000, or imprisoned not

14 more than 1 year, or both, shall be removed from office or

15 employment, and shall be subject to a civil penalty of not

16 more than $1,000.’’.

17 (3) PENALTIES.—Section 206 of the Inter18 national Emergency Economic Powers Act (50 U.S.C.

19 1705) is amended—

20 (A) in subsection (a) by inserting ‘‘, or at21 tempts to violate,’’ after ‘‘violates’’; and

22 (B) in subsection (b) by inserting ‘‘, or will23 fully attempts to violate,’’ after ‘‘violates’’.
185

•HR 361 RH

1 (e) AMENDMENTS TO THE TRADING WITH THE ENEMY

2 ACT.—Section 16 of the Trading With the Enemy Act (50

3 U.S.C. App. 16) is amended—

4 (1) in subsection (a)—

5 (A) by inserting ‘‘, or attempt to violate,’’

6 after ‘‘violate’’ the first place it appears; and

7 (B) by inserting ‘‘attempt to violate,’’ after

8 ‘‘violate,’’ the second place it appears; and

9 (2) in subsection (b)(1) by inserting ‘‘, or at10 tempts to violate,’’ after ‘‘violates’’.

11 (f) REPORT ON OFAC AND ODTC.—

12 (1) STUDY ON OFAC.—The Secretary of the

13 Treasury shall study ways to make the operations of

14 the Office of Foreign Assets Control of the Department

15 of the Treasury more effective and efficient in re16 sponding to licensing requests and other inquiries of

17 United States exporters, including through the up18 grading of technology in that office.

19 (2) STUDY ON ODTC.—The Secretary of State

20 shall study ways to make the Office of Defense Trade

21 Controls of the Department of State more effective

22 and efficient in responding to licensing requests and

23 other inquiries of United States exporters, including

24 through the upgrading of technology in that office.
186

•HR 361 RH

1 (3) SUBMISSION OF REPORTS.—Not later than 6

2 months after the date of the enactment of this Act, the

3 Secretary of the Treasury shall submit to the Congress

4 a report on the study conducted under paragraph (1)

5 and the Secretary of State shall submit to the Con6 gress a report on the study conducted under para7 graph (2).

8 SEC. 118. SECONDARY ARAB BOYCOTT.

9 (a) SENSE OF CONGRESS.—

10 (1) ENDING SECONDARY BOYCOTT.—It is the

11 sense of the Congress that the countries of the Arab

12 League should end the secondary Arab boycott.

13 (2) ACTIONS TO END SECONDARY BOYCOTT.—The

14 United States will consider the secondary Arab boy15 cott to have ended when—

16 (A) the Arab League issues a public pro17 nouncement that the Arab League has ended the

18 secondary Arab boycott;

19 (B) all activities carried out by the Central

20 Office for the Boycott of Israel in support of the

21 secondary Arab boycott have been terminated;

22 (C) the Arab League and the individual

23 countries that are members of the Arab League

24 have terminated the practice of barring United

25 States persons and foreign companies that do not
187

•HR 361 RH

1 comply with the secondary Arab boycott from

2 doing business with countries that are members

3 of the Arab League, and have declared null and

4 void any existing list of such barred persons and

5 companies; and

6 (D) the Arab League, and the individual

7 countries that are the members of the Arab

8 League, have ceased requesting United States

9 persons to take actions prohibited under section

10 108(a).

11 (b) DEFINITION.—For purposes of this section, the

12 term ‘‘secondary Arab boycott’’ means the refusal to do busi13 ness with persons who do not comply with requests to take

14 any action prohibited under section 108(a) with respect to

15 Israel.

16 SEC. 119. CONFORMING AMENDMENTS.

17 (a) ARMS EXPORT CONTROL ACT.—

18 (1) Section 38 of the Arms Export Control Act

19 (22 U.S.C. 2778) is amended—

20 (A) in subsection (e)—

21 (i) in the first sentence by striking

22 ‘‘subsections (c)’’ and all that follows

23 through ‘‘12 of such Act’’ and inserting

24 ‘‘subsections (b), (c), (d) and (e) of section

25 110 of the Export Administration Act of
188

•HR 361 RH

1 1996, by subsections (a) and (b) of section

2 113 of such Act, and by section 114(g) of

3 such Act’’; and

4 (ii) in the third sentence by striking

5 ‘‘11(c) of the Export Administration Act of

6 1979’’ and inserting ‘‘110(c) of the Export

7 Administration Act of 1996’’; and

8 (B) in subsection (g)(1)(A) by striking

9 clause (ii) and inserting the following:

10 ‘‘(ii) section 110 of the Export Administra11 tion Act of 1996,’’.

12 (2) Section 39A(c) of the Arms Export Control

13 Act, as added by the Foreign Relations Authorization

14 Act, Fiscal Years 1994 and 1995, is amended—

15 (A) by striking ‘‘(c),’’ and all that follows

16 through ‘‘12(a) of such Act’’ and inserting ‘‘(c),

17 (d), and (e) of section 110, section 112(c), and

18 subsections (a) and (b) of section 113, of the Ex19 port Administration Act of 1996’’; and

20 (B) by striking ‘‘11(c)’’ and inserting

21 ‘‘110(c)’’.

22 (3) Section 40(k) of the Arms Export Control Act

23 (22 U.S.C. 2780(k)) is amended—

24 (A) by striking ‘‘11(c), 11(e), 11(g), and

25 12(a) of the Export Administration Act of 1979’’
189

•HR 361 RH

1 and inserting ‘‘110(b), 110(c), 110(e), 113(a),

2 and 113(b) of the Export Administration Act of

3 1996’’; and

4 (B) by striking ‘‘11(c)’’ and inserting

5 ‘‘110(c)’’.

6 (4) Section 73A of the Arms Export Control Act,

7 as added by the Foreign Relations Authorization Act,

8 Fiscal Years 1995 and 1995, is amended by striking

9 ‘‘a MTCR adherent’’ and inserting ‘‘an MTCR adher10 ent’’.

11 (b) OTHER PROVISIONS OF LAW.—

12 (1) Section 5(b)(4) of the Trading with the

13 Enemy Act (12 U.S.C. 95a(4); 50 U.S.C. App.

14 5(b)(4)) is amended by striking ‘‘section 5 of the Ex15 port Administration Act of 1979, or under section 6

16 of that Act to the extent that such controls promote

17 the nonproliferation or antiterrorism policies of the

18 United States’’ and inserting ‘‘the Export Adminis19 tration Act of 1996’’.

20 (2) Section 502B(a)(2) of the Foreign Assistance

21 Act of 1961 (22 U.S.C. 2304(a)(2)) is amended in the

22 second sentence—

23 (A) by striking ‘‘Export Administration Act

24 of 1979’’ the first place it appears and inserting

25 ‘‘Export Administration Act of 1996’’; and
190

•HR 361 RH

1 (B) by striking ‘‘Act of 1979)’’ and insert2 ing ‘‘Act of 1996)’’.

3 (3)(A) Section 140(a) of the Foreign Relations

4 Authorization Act, Fiscal Years 1988 and 1989 (22

5 U.S.C. 2656f(a)) is amended—

6 (i) in paragraph (1)(B) by inserting ‘‘or

7 section 106(i) of the Export Administration Act

8 of 1996’’ after ‘‘Act of 1979’’; and

9 (ii) in paragraph (2) by striking ‘‘6(j) of

10 the Export Administration Act of 1979’’ and in11 serting ‘‘106(i) of the Export Administration Act

12 of 1996’’.

13 (B) For purposes of the report required by

14 March 31, 1996, under section 140(a) of the Foreign

15 Relations Authorization Act, Fiscal Years 1988 and

16 1989, the reference in paragraph (2) of such section

17 to ‘‘section 106(i) of the Export Administration Act

18 of 1996’’ shall be deemed to refer to ‘‘section 6(j) of

19 the Export Administration Act of 1979 or section

20 106(i) of the Export Administration Act of 1996’’.

21 (4) Section 40(e)(1) of the State Department

22 Basic Authorities Act of 1956 (22 U.S.C. 2712(e)(1))

23 is amended by striking ‘‘6(j)(1) of the Export Admin24 istration Act of 1979’’ and inserting ‘‘106(i)(1) of the

25 Export Administration Act of 1996’’.
191

•HR 361 RH

1 (5) Section 110 of the International Security

2 and Development Cooperation Act of 1980 (22 U.S.C.

3 2778a) is amended by striking ‘‘Act of 1979’’ and in4 serting ‘‘Act of 1996’’.

5 (6) Section 205(d)(4)(B) of the State Depart6 ment Basic Authorities Act of 1956 (22 U.S.C.

7 4305(d)(4)(B)) is amended by striking ‘‘6(j) of the

8 Export Administration Act of 1979’’ and inserting

9 ‘‘106(i) of the Export Administration Act of 1996’’.

10 (7) Section 203(b)(3) of the International Emer11 gency Economic Powers Act (50 U.S.C. 1702(b)(3)) is

12 amended by striking ‘‘section 5 of the Export Admin13 istration Act of 1979, or under section 6 of such Act

14 to the extent that such controls promote the non15 proliferation or antiterrorism policies of the United

16 States’’ and inserting ‘‘the Export Administration

17 Act of 1996’’.

18 (8) Section 491(f) of the Forest Resources Con19 servation and Shortage Relief Act of 1990 (16 U.S.C.

20 620c(f)) is repealed.

21 (c) REPEAL.—The Export Administration Act of 1979

22 is repealed.

23 SEC. 120. EXPIRATION DATE.

24 This title expires on June 30, 2001.
192

•HR 361 RH

1 SEC. 121. SAVINGS PROVISIONS.

2 (a) IN GENERAL.—All delegations, rules, regulations,

3 orders, determinations, licenses, or other forms of adminis4 trative action which have been made, issued, conducted, or

5 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 con12 tinue in effect according to their terms until modified, su13 perseded, set aside, or revoked under this title or the Arms

14 Export Control Act.

15 (b) ADMINISTRATIVE AND JUDICIAL PROCEEDINGS.—

16 (1) EXPORT ADMINISTRATION ACT.—This title

17 shall not affect any administrative or judicial pro18 ceedings commenced or any application for a license

19 made, under the Export Administration Act of 1979,

20 which is pending at the time this title takes effect.

21 Any such proceedings, and any action on such appli22 cation, shall continue under the Export Administra23 tion Act of 1979 as if that Act had not been repealed.

24 (2) OTHER PROVISIONS OF LAW.—This title shall

25 not affect any administrative or judicial proceedings

26 commenced or any application for a license made,
193

•HR 361 RH

1 under those provisions of the Arms Export Control

2 Act which are amended by section 119, if such pro3 ceedings or application is pending at the time this

4 title takes effect. Any such proceedings, and any ac5 tion on such application, shall continue under those

6 provisions as if those provisions had not been amend7 ed by section 119.

8 (c) TREATMENT OF CERTAIN DETERMINATIONS.—Any

9 determination with respect to the government of a foreign

10 country under section 6(j) of the Export Administration Act

11 of 1979, that is in effect at the time this title takes effect,

12 shall, for purposes of this title or any other provision of

13 law, be deemed to be made under section 106(i) of this Act

14 until superseded by a determination under such section

15 106(i).

16 TITLE II—NUCLEAR

17 PROLIFERATION PREVENTION

18 SEC. 201. REPEAL OF TERMINATION OF PROVISIONS OF

19 THE NUCLEAR PROLIFERATION PREVENTION

20 ACT OF 1994.

21 (a) REPEAL.—Part D of the Nuclear Proliferation

22 Prevention Act of 1994 (part D of title VIII of the Foreign

23 Relations Authorization Act, Fiscal Years 1994 and 1995;

24 Public Law 103–236; 108 Stat. 525) is hereby repealed.
194

•HR 361 RH

1 (b) PRESIDENTIAL DETERMINATIONS.—Section 824(c)

2 of the Nuclear Proliferation Prevention Act of 1994 is

3 amended by striking ‘‘, in writing after opportunity for a

4 hearing on the record,’’.

5 (c) JUDICIAL REVIEW.—Section 824 of the Nuclear

6 Proliferation Prevention Act of 1994 is amended—

7 (1) by striking subsection (e); and

8 (2) by redesignating subsections (f) through (k)

9 as subsections (e) through (j), respectively.

10 (d) CONFORMING AMENDMENT.—Section 102(b)(2)(G)

11 of the Arms Export Control Act (22 U.S.C. 2799aa–

12 1(b)(2)(G)) is amended by striking ‘‘section 6 of the Export

13 Administration Act of 1979’’ and inserting ‘‘section 105 or

14 106 of the Export Administration Act of 1996’’.

15 SEC. 202. SEEKING MULTILATERAL SUPPORT FOR UNILAT16 ERAL SANCTIONS.

17 The Secretary of State, in consultation with appro18 priate departments and agencies, shall seek the support of

19 other countries for sanctions imposed under the Nuclear

20 Proliferation Prevention Act of 1994 or the amendments

21 made by that Act.
195

•HR 361 RH

1 SEC. 203. SANCTIONS UNDER THE NUCLEAR PROLIFERA2 TION PREVENTION ACT OF 1994.

3 Section 102(b)(2) of the Arms Export Control Act (22

4 U.S.C. 2799aa–1(b)(2)) is amended by adding at the end

5 the following:

6 ‘‘(H)(i) The President shall prohibit the impor7 tation into the United States of specific products pro8 duced in that country by persons who have engaged

9 in the activities described in paragraph (1) that were

10 the basis of the President’s determination under such

11 paragraph.

12 ‘‘(ii) In the event that it is not possible to iden13 tify the persons who have engaged in the activities de14 scribed in paragraph (1) that were the basis of the

15 President’s determination under such paragraph, the

16 President shall prohibit the importation into the

17 United States of products produced in that country

18 by those persons that the President shall designate as

19 most closely identified with those activities.

20 ‘‘(iii) For purposes of this subparagraph, the

21 term ‘person’ means—

22 ‘‘(I) a natural person;

23 ‘‘(II) a corporation, business association,

24 partnership, society, or trust, or any other non25 governmental entity, organization, or group;
196

•HR 361 RH

1 ‘‘(III) a governmental entity operating as a

2 business enterprise;

3 ‘‘(IV) a division or office of a governmental

4 department; or

5 ‘‘(V) a military unit or successor to such

6 unit.

7 ‘‘(iv) The prohibition on imports imposed under

8 this subparagraph shall be in addition to any other

9 prohibition on imports in effect before the President’s

10 determination under paragraph (1) is made.’’.