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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3581 Reported in Senate (RS)]

                                                       Calendar No. 586
111th CONGRESS
  2d Session
                                S. 3581

                          [Report No. 111-302]

              To implement certain defense trade treaties.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             July 14, 2010

 Mr. Lugar (for himself, Mr. McCain, Mr. Kyl, and Mr. Webb) introduced 
the following bill; which was read twice and referred to the Committee 
                          on Foreign Relations

                           September 23, 2010

 Reported by Mr. Kerry, with an amendment and an amendment to the title
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL

 
              To implement certain defense trade treaties.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Defense Trade Treaty 
Implementation Act of 2010''.</DELETED>

<DELETED>SEC. 2. EXEMPTION FROM REQUIREMENTS FOR BILATERAL 
              AGREEMENTS.</DELETED>

<DELETED>    Section 38(j)(1) of the Arms Export Control Act (22 U.S.C. 
2778(j)(1)) is amended--</DELETED>
        <DELETED>    (1) in the subparagraph heading for subparagraph 
        (B), by inserting ``for canada'' after ``Exception''; 
        and</DELETED>
        <DELETED>    (2) by adding at the end the following new 
        subparagraph:</DELETED>
                <DELETED>    ``(C) Exception for defense trade 
                cooperation treaties.--The requirement to conclude a 
                bilateral agreement in accordance with subparagraph (A) 
                shall not apply with respect to an exemption from the 
                licensing requirements of this Act for the export of 
                defense items to give effect to any of the following 
                defense trade cooperation treaties, provided that the 
                treaty has entered into force pursuant to Article II, 
                Section 2, clause 2 of the Constitution of the United 
                States:</DELETED>
                        <DELETED>    ``(i) The Treaty Between the 
                        Government of the United States of America and 
                        the Government of the United Kingdom of Great 
                        Britain and Northern Ireland Concerning Defense 
                        Trade Cooperation, done at Washington and 
                        London June 21 and 26, 2007 (and any 
                        implementing arrangement thereto).</DELETED>
                        <DELETED>    ``(ii) The Treaty Between the 
                        Government of the United States of America and 
                        the Government of Australia Concerning Defense 
                        Trade Cooperation, done at Sydney September 23, 
                        2007 (and any implementing arrangement 
                        thereto).''.</DELETED>

<DELETED>SEC. 3. ENFORCEMENT.</DELETED>

<DELETED>    (a) Criminal Violations.--Section 38(c) of such Act is 
amended by striking ``this section or section 39, or any rule or 
regulation issued under either section'' and inserting ``this section, 
section 39, a treaty referred to in subsection (j)(1)(C), or any rule 
or regulation issued under this section or section 39, including any 
rule or regulation issued under this section to implement or enforce a 
treaty referred to in subsection (j)(1)(C) or an implementing 
arrangement pursuant to such treaty''.</DELETED>
<DELETED>    (b) Enforcement Powers of President.--Section 38(e) of 
such Act is amended by striking ``defense services,'' and inserting 
``defense services, including defense articles and defense services 
exported or imported pursuant to a treaty referred to in subsection 
(j)(1)(C),''.</DELETED>
<DELETED>    (c) Notification Regarding Exemptions From Licensing 
Requirements.--Section 38(f) of such Act is amended by adding at the 
end the following new paragraph:</DELETED>
<DELETED>    ``(4) Paragraph (2) shall not apply with respect to an 
exemption under subsection (j)(1)(A) to give effect to a treaty 
referred to in subsection (j)(1)(C) (and any implementing arrangements 
to such treaty), provided that the President promulgates regulations to 
implement and enforce such treaty under this section and section 
39.''.</DELETED>

<DELETED>SEC. 4. CONGRESSIONAL NOTIFICATION.</DELETED>

<DELETED>    (a) Eligibility for Defense Articles or Defense 
Articles.--Section 3(d)(3)(A) of such Act (22 U.S.C. 2753(d)(3)(A)) is 
amended by inserting after ``approved under section 38 of this Act'' 
the following: ``or has been exempted from the licensing requirements 
of this Act pursuant to section 38(j) of this Act''.</DELETED>
<DELETED>    (b) Presidential Certifications.--</DELETED>
        <DELETED>    (1) Export licenses.--Section 36(c) of such Act 
        (22 U.S.C. 2776(c)) is amended by adding at the end the 
        following new paragraph:</DELETED>
<DELETED>    ``(6) An export pursuant to a treaty referred to in 
section 38(j)(1)(C) of this Act to which the provisions of paragraph 
(1) would apply absent an exemption granted under section 38(j)(1) of 
this Act shall not take place until 15 days after the President has 
submitted a certification with respect to such export in a similar 
manner, and containing comparable information, as required under 
paragraph (1).''.</DELETED>
        <DELETED>    (2) Commercial technical assistance or 
        manufacturing licensing agreements.--Section 36(d) of such Act 
        (22 U.S.C. 2776(d)) is amended by adding at the end the 
        following new paragraph:</DELETED>
<DELETED>    ``(6) An export pursuant to a treaty referred to in 
section 38(j)(1)(C) of this Act to which the provisions of paragraph 
(1) would apply absent an exemption granted under section 38(j)(1) of 
this Act shall not take place until 15 days after the President has 
submitted a certification with respect to such export in a similar 
manner, and containing comparable information, as required under 
paragraph (1).''.</DELETED>

<DELETED>SEC. 5. IMPLEMENTING REGULATIONS.</DELETED>

<DELETED>    The President is authorized to issue regulations pursuant 
to the Arms Export Control Act (22 U.S.C. 2751 et seq.) to implement 
and enforce the Treaty Between the Government of the United States of 
America and the Government of the United Kingdom of Great Britain and 
Northern Ireland Concerning Defense Trade Cooperation, done at 
Washington and London June 21 and 26, 2007 (and any implementing 
arrangement thereto), and the Treaty Between the Government of the 
United States of America and the Government of Australia Concerning 
Defense Trade Cooperation, done at Sydney September 23, 2007 (and any 
implementing arrangement thereto), consistent with other applicable 
provisions of the Arms Export Control Act, as amended by this Act, and 
with the terms of any resolution of advice and consent adopted by the 
Senate with respect to either treaty.</DELETED>

<DELETED>SEC. 6. RULE OF CONSTRUCTION.</DELETED>

<DELETED>    Nothing in this Act, or in the Treaty Between the 
Government of the United States of America and the Government of the 
United Kingdom of Great Britain and Northern Ireland Concerning Defense 
Trade Cooperation, done at Washington and London on June 21 and 26, 
2007 (and any implementing arrangement thereto), or in the Treaty 
Between the Government of the United States of America and the 
Government of Australia Concerning Defense Trade Cooperation, done at 
Sydney, September 23, 2007 (and any implementing arrangement thereto), 
or in any regulation issued to implement either treaty, shall be 
construed to modify or supersede any provision of law or regulation 
other than the Arms Export Control Act (22 U.S.C. 2751 et seq.), as 
amended by this Act, and regulations issued pursuant to such 
Act.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Defense Trade Cooperation Treaties 
Implementation Act of 2010''.

SEC. 2. EXEMPTIONS FROM REQUIREMENTS.

    (a) Retransfer Requirements.--Section 3(b) of the Arms Export 
Control Act (22 U.S.C. 2753(b)) is amended by inserting ``a treaty 
referred to in section 38(j)(1)(C)(i) of this Act permits such transfer 
without prior consent of the President, or if'' after ``if''.
    (b) Bilateral Agreement Requirements.--Section 38(j)(1) of such Act 
(22 U.S.C. 2778(j)(1)) is amended--
            (1) in the subparagraph heading for subparagraph (B), by 
        inserting ``for canada'' after ``Exception''; and
            (2) by adding at the end the following new subparagraph:
                    ``(C) Exception for defense trade cooperation 
                treaties.--
                            ``(i) In general.--The requirement to 
                        conclude a bilateral agreement in accordance 
                        with subparagraph (A) shall not apply with 
                        respect to an exemption from the licensing 
                        requirements of this Act for the export of 
                        defense items to give effect to any of the 
                        following defense trade cooperation treaties, 
                        provided that the treaty has entered into force 
                        pursuant to article II, section 2, clause 2 of 
                        the Constitution of the United States:
                                    ``(I) The Treaty Between the 
                                Government of the United States of 
                                America and the Government of the 
                                United Kingdom of Great Britain and 
                                Northern Ireland Concerning Defense 
                                Trade Cooperation, done at Washington 
                                and London on June 21 and 26, 2007 (and 
                                any implementing arrangement thereto).
                                    ``(II) The Treaty Between the 
                                Government of the United States of 
                                America and the Government of Australia 
                                Concerning Defense Trade Cooperation, 
                                done at Sydney September 5, 2007 (and 
                                any implementing arrangement thereto).
                            ``(ii) Limitation of scope.--The United 
                        States shall exempt from the scope of a treaty 
                        referred to in clause (i)--
                                    ``(I) complete rocket systems 
                                (including ballistic missile systems, 
                                space launch vehicles, and sounding 
                                rockets) or complete unmanned aerial 
                                vehicle systems (including cruise 
                                missile systems, target drones, and 
                                reconnaissance drones) capable of 
                                delivering at least a 500 kilogram 
                                payload to a range of 300 kilometers, 
                                and associated production facilities, 
                                software, or technology for these 
                                systems, as defined in the Missile 
                                Technology Control Regime Annex 
                                Category I, Item 1;
                                    ``(II) individual rocket stages, 
                                re-entry vehicles and equipment, solid 
                                or liquid propellant motors or engines, 
                                guidance sets, thrust vector control 
                                systems, and associated production 
                                facilities, software, and technology, 
                                as defined in the Missile Technology 
                                Control Regime Annex Category I, Item 
                                2;
                                    ``(III) defense articles and 
                                defense services listed in the Missile 
                                Technology Control Regime Annex 
                                Category II that are for use in rocket 
                                systems, as that term is used in such 
                                Annex, including associated production 
                                facilities, software, or technology;
                                    ``(IV) toxicological agents, 
                                biological agents, and associated 
                                equipment, as listed in the United 
                                States Munitions List (part 121.1 of 
                                chapter I of title 22, Code of Federal 
                                Regulations), Category XIV, 
                                subcategories (a), (b), (f)(1), (i), 
                                (j) as it pertains to (f)(1), (l) as it 
                                pertains to (f)(1), and (m) as it 
                                pertains to all of the subcategories 
                                cited in this paragraph;
                                    ``(V) defense articles and defense 
                                services specific to the design and 
                                testing of nuclear weapons which are 
                                controlled under United States 
                                Munitions List Category XVI(a) and (b), 
                                along with associated defense articles 
                                in Category XVI(d) and technology in 
                                Category XVI(e);
                                    ``(VI) with regard to the treaty 
                                cited in clause (i)(I), defense 
                                articles and defense services that the 
                                United States controls under the United 
                                States Munitions List that are not 
                                controlled by the United Kingdom, as 
                                defined in the United Kingdom Military 
                                List or Annex 4 to the United Kingdom 
                                Dual Use List, or any successor lists 
                                thereto; and
                                    ``(VII) with regard to the treaty 
                                cited in clause (i)(II), defense 
                                articles for which Australian laws, 
                                regulations, or other commitments would 
                                prevent Australia from enforcing the 
                                control measures specified in such 
                                treaty.''.

SEC. 3. ENFORCEMENT.

    (a) Criminal Violations.--Section 38(c) of such Act (22 U.S.C. 
2778(c)) is amended by striking ``this section or section 39, or any 
rule or regulation issued under either section'' and inserting ``this 
section, section 39, a treaty referred to in subsection (j)(1)(C)(i), 
or any rule or regulation issued under this section or section 39, 
including any rule or regulation issued to implement or enforce a 
treaty referred to in subsection (j)(1)(C)(i) or an implementing 
arrangement pursuant to such treaty''.
    (b) Enforcement Powers of President.--Section 38(e) of such Act (22 
U.S.C. 2278(e)) is amended by striking ``defense services,'' and 
inserting ``defense services, including defense articles and defense 
services exported or imported pursuant to a treaty referred to in 
subsection (j)(1)(C)(i),''.
    (c) Notification Regarding Exemptions From Licensing 
Requirements.--Section 38(f) of such Act (22 U.S.C. 2778(f)) is amended 
by adding at the end the following new paragraph:
            ``(4) Paragraph (2) shall not apply with respect to an 
        exemption under subsection (j)(1) to give effect to a treaty 
        referred to in subsection (j)(1)(C)(i) (and any implementing 
        arrangements to such treaty), provided that the President 
        promulgates regulations to implement and enforce such treaty 
        under this section and section 39.''.
    (d) Incentive Payments.--Section 39A(a) of such Act (22 U.S.C. 
2779a(a)) is amended by inserting ``or exported pursuant to a treaty 
referred to in section 38(j)(1)(C)(i) of this Act'' after ``under this 
Act''.

SEC. 4. CONGRESSIONAL NOTIFICATION.

    (a) Retransfers and Reexports.--Section 3(d)(3)(A) of such Act (22 
U.S.C. 2753(d)(3)(A)) is amended by inserting ``or has been exempted 
from the licensing requirements of this Act pursuant to a treaty 
referred to in section 38(j)(1)(C)(i) of this Act where such treaty 
does not authorize the transfer without prior United States Government 
approval'' after ``approved under section 38 of this Act''.
    (b) Discrimination.--Section 5(c) of such Act (22 U.S.C. 2755(c)) 
is amended by inserting ``or any import or export under a treaty 
referred to in section 38(j)(1)(C)(i) of this Act'' after ``under this 
Act''.
    (c) Annual Estimate of Sales.--Section 25(a) of such Act (22 U.S.C. 
2765(a)) is amended--
            (1) in paragraph (1), by inserting ``, as well as exports 
        pursuant to a treaty referred to in section 38(j)(1)(C)(i) of 
        this Act,'' after ``commercial exports under this Act''; and
            (2) in paragraph (2), by inserting ``, as well as exports 
        pursuant to a treaty referred to in section 38(j)(1)(C)(i) of 
        this Act,'' after ``commercial exports''.
    (d) Presidential Certifications.--
            (1) Exports.--Section 36(c) of such Act (22 U.S.C. 2776(c)) 
        is amended by adding at the end the following new paragraph:
            ``(6) The President shall notify the Speaker of the House 
        of Representatives and the Chairman of the Committee on Foreign 
        Relations of the Senate at least 15 days prior to an export 
        pursuant to a treaty referred to in section 38(j)(1)(C)(i) of 
        this Act to which the provisions of paragraph (1) of this 
        subsection would apply absent an exemption granted under 
        section 38(j)(1) of this Act, for which purpose such 
        notification shall contain information comparable to that 
        specified in paragraph (1) of this subsection.''.
            (2) Commercial technical assistance or manufacturing 
        licensing agreements.--Section 36(d) of such Act (22 U.S.C. 
        2776(d)) is amended by adding at the end the following new 
        paragraph:
            ``(6) The President shall notify the Speaker of the House 
        of Representatives and the Chairman of the Committee on Foreign 
        Relations of the Senate at least 15 days prior to an export 
        pursuant to a treaty referred to in section 38(j)(1)(C)(i) of 
        this Act to which the provisions of paragraph (1) of this 
        subsection would apply absent an exemption granted under 
        section 38(j)(1) of this Act, for which purpose such 
        notification shall contain information comparable to that 
        specified in paragraph (1) of this subsection.''.
    (e) Fees and Political Contributions.--Section 39(a) of such Act 
(22 U.S.C. 2779(a)) is amended--
            (1) in paragraph (1), by striking ``; or'' and inserting a 
        semicolon;
            (2) in paragraph (2), by inserting ``or'' after the 
        semicolon; and
            (3) by adding at the end the following new paragraph:
            ``(3) exports of defense articles or defense services 
        pursuant to a treaty referenced in section 38(j)(1)(C)(i) of 
        this Act;''.

SEC. 5. LIMITATION ON IMPLEMENTING ARRANGEMENTS.

    (a) In General.--No amendment to an implementing arrangement 
concluded pursuant to a treaty referred to in section 38(j)(1)(C)(i) of 
the Arms Export Control Act, as added by this Act, shall enter into 
effect for the United States unless the Congress adopts, and there is 
enacted, legislation approving the entry into effect of that amendment 
for the United States.
    (b) Covered Amendments.--
            (1) In general.--The requirements specified in subsection 
        (a) shall apply to any amendment other than an amendment that 
        addresses an administrative or technical matter. The 
        requirements in subsection (a) shall not apply to any amendment 
        that solely addresses an administrative or technical matter.
            (2) U.S.-UK implementing arrangement.--In the case of the 
        Implementing Arrangement Pursuant to the Treaty Between the 
        Government of the United States of America and the Government 
        of the United Kingdom of Great Britain and Northern Ireland 
        Concerning Defense Trade Cooperation, signed at Washington 
        February 14, 2008, amendments to which the requirements 
        specified in subsection (a) apply shall include--
                    (A) any amendment to section 2, paragraphs (1), 
                (2), or (3) that modifies the criteria governing 
                operations, programs, and projects to which the treaty 
                applies;
                    (B) any amendment to section 3, paragraphs (1) or 
                (2) that modifies the criteria governing end-use 
                requirements and the requirements for approved 
                community members responding to United States 
                Government solicitations;
                    (C) any amendment to section 4, paragraph (4) that 
                modifies the criteria for including items on the list 
                of defense articles exempt from the treaty;
                    (D) any amendment to section 4, paragraph (7) that 
                modifies licensing and other applicable requirements 
                relating to items added to the list of defense articles 
                exempt from the scope of the treaty;
                    (E) any amendment to section 7, paragraph (4) that 
                modifies the criteria for eligibility in the approved 
                community under the treaty for nongovernmental United 
                Kingdom entities and facilities;
                    (F) any amendment to section 7, paragraph (9) that 
                modifies the conditions for suspending or removing a 
                United Kingdom entity from the approved community under 
                the treaty;
                    (G) any amendment to section 7, paragraphs (11) or 
                (12) that modifies the conditions under which 
                individuals may be granted access to defense articles 
                exported under the treaty;
                    (H) any amendment to section 9, paragraphs (1), 
                (3), (7), (8), (9), (12), or (13) that modifies the 
                circumstances under which United States Government 
                approval is required for the re-transfer or re-export 
                of a defense article, or to exceptions to such 
                requirement; and
                    (I) any amendment to section 11, paragraph (4)(b) 
                that modifies conditions of entry to the United Kingdom 
                community under the treaty.
            (3) U.S.-Australia implementing arrangement.--In the case 
        of the Implementing Arrangement Pursuant to the Treaty Between 
        the Government of the United States of America and the 
        Government of the Australia Concerning Defense Trade 
        Cooperation, signed at Washington March 14, 2008, amendments to 
        which the requirements specified in subsection (a) apply shall 
        include--
                    (A) any amendment to section 2, paragraphs (1), 
                (2), or (3) that modifies the criteria governing 
                operations, programs, and projects to which the treaty 
                applies;
                    (B) any amendment to section 3, paragraphs (1) or 
                (2) that modifies the criteria governing end-use 
                requirements and the requirements for approved 
                community members responding to United States 
                Government solicitations;
                    (C) any amendment to section 4, paragraph (4) that 
                modifies criteria for including items on the list of 
                defense articles exempt from the scope of the treaty;
                    (D) any amendment to section 4, paragraph (7) that 
                modifies licensing and other applicable requirements 
                relating to items added to the list of defense articles 
                exempt from the scope of the treaty;
                    (E) any amendment to section 6, paragraph (4) that 
                modifies the criteria for eligibility in the approved 
                community under the treaty for nongovernmental 
                Australian entities and facilities;
                    (F) any amendment to section 6, paragraph (9) that 
                modifies the conditions for suspending or removing an 
                Australian entity from the Australia community under 
                the treaty;
                    (G) any amendment to section 6, paragraphs (11), 
                (12), (13), or (14) that modifies the conditions under 
                which individuals may be granted access to defense 
                articles exported under the treaty;
                    (H) any amendment to section 9, paragraphs (1), 
                (2), (4), (7), or (8) that modifies the circumstances 
                under which United States Government approval is 
                required for the re-transfer or re-export of a defense 
                article, or to exceptions to such requirement; and
                    (I) any amendment to section 11, paragraph (6) that 
                modifies conditions of entry to the Australian 
                community under the treaty.
    (c) Congressional Notification for Other Amendments to Implementing 
Arrangements.--
            (1) In general.--Except as noted under paragraph (2), not 
        later than 15 days before any amendment to an implementing 
        arrangement to which subsection (a) does not apply shall take 
        effect, the President shall provide to the Committee on Foreign 
        Relations of the Senate and the Committee on Foreign Affairs of 
        the House of Representatives a report containing--
                    (A) the text of the amendment; and
                    (B) an analysis of the amendment's effect, 
                including an analysis regarding why subsection (a) does 
                not apply.
            (2) Exceptional circumstances.--If the President determines 
        that it is important to maintaining the viability and 
        effectiveness of a treaty referred to in section 38(j)(1)(C)(i) 
        of the Arms Export Control Act, as added by this Act, to 
        immediately bring into effect an amendment to an implementing 
        arrangement to which subsection (a) does not apply, then no 
        later than 5 days after such amendment shall come into effect, 
        the President shall provide to the Committee on Foreign 
        Relations of the Senate and the Committee on Foreign Affairs of 
        the House of Representatives a certification to that effect and 
        the reasons for making the determination, as well as the report 
        required under paragraph (1).

SEC. 6. IMPLEMENTING REGULATIONS.

    The President is authorized to issue regulations pursuant to the 
Arms Export Control Act (22 U.S.C. 2751 et seq.) to implement and 
enforce the Treaty Between the Government of the United States of 
America and the Government of the United Kingdom of Great Britain and 
Northern Ireland Concerning Defense Trade Cooperation, done at 
Washington and London on June 21 and 26, 2007 (and any implementing 
arrangement thereto) and the Treaty Between the Government of the 
United States of America and the Government of Australia Concerning 
Defense Trade Cooperation, done at Sydney, September 5, 2007 (and any 
implementing arrangement thereto), consistent with other applicable 
provisions of the Arms Export Control Act, as amended by this Act, and 
with the terms of any resolution of advice and consent adopted by the 
Senate with respect to either treaty.

SEC. 7. RULE OF CONSTRUCTION.

    Nothing in this Act, the Treaty Between the Government of the 
United States of America and the Government of the United Kingdom of 
Great Britain and Northern Ireland Concerning Defense Trade 
Cooperation, done at Washington and London on June 21 and 26, 2007 (and 
any implementing arrangement thereto), the Treaty Between the 
Government of the United States of America and the Government of 
Australia Concerning Defense Trade Cooperation, done at Sydney, 
September 5, 2007 (and any implementing arrangement thereto), or in any 
regulation issued to implement either treaty, shall be construed to 
modify or supersede any provision of law or regulation other than the 
Arms Export Control Act (22 U.S.C. 2751 et seq.), as amended by this 
Act, and the International Traffic in Arms Regulations (subchapter M of 
chapter I of title 22, Code of Federal Regulations).
            Amend the title so as to read: ``To implement certain 
        defense trade cooperation treaties.''.
                                                       Calendar No. 586

111th CONGRESS

  2d Session

                                S. 3581

                          [Report No. 111-302]

_______________________________________________________________________

                                 A BILL

              To implement certain defense trade treaties.

_______________________________________________________________________

                           September 23, 2010

        Reported with an amendment and an amendment to the title
```