173
listed in section 110(f). The court shall vacate the
Secretary’s order if the court finds that the Sec-
retary’s order is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
(e) APPEALS FROM LICENSING AND CLASSIFICATION
ACTIONS.—
(1) LICENSE DENIALS.—A determination of the
Secretary under section 109 to deny a license may
be appealed by the applicant to an administrative
law judge who shall have the authority to conduct
proceedings to determine only whether the item
sought to be exported is in fact on the control list.
Such proceedings shall be conducted within 90 days
after the appeal is filed. Any determination by an
administrative law judge under this subsection and
all materials filed before such judge in the proceed-
ings shall be reviewed by the Secretary, who shall ei-
ther affirm or vacate the determination in a written
decision within 30 days after receiving the deter-
mination.
(2) CLASSIFICATION
DECISIONS.—(A) Within
30 days after the issuance of a classification decision
under section 109(h)(1), or within 30 days after the
failure to issue such a classification decision in re-
sponse to a request for such a decision, any United
174
States person aggrieved by such decision or failure
may file an appeal thereof to an administrative law
judge, but only on issues regarding such classifica-
tion decision including, but not limited to, decisions
of whether an item is covered by any general or spe-
cific note. The administrative law judge may not re-
view determinations as to the reliability of an end
user or the nature of an end use or end user. The
administrative law judge shall, within 90 days after
such appeal is filed, issue his or her decision and
issue any order that is necessary or appropriate to
carry out such decision. Such order shall be binding
upon the Secretary unless and until vacated or modi-
fied under subparagraph (B). Such order may be
stayed by the administrative law judge or the Sec-
retary pending the filing and determination of an
appeal under subparagraph (B).
(B) Any United States person aggrieved by a
decision of the administrative law judge under sub-
paragraph (A) may appeal such decision to the Sec-
retary within 45 days after receiving notification of
such decision. The Secretary shall, in a written
order, affirm, modify, or vacate the decision of the
administrative law judge within 30 days after such
appeal is filed. The authority of the Secretary under
175
this paragraph may not be delegated to an officer or
employee of the Bureau of Export Administration.
(3) PUBLICATION
AND
INDEXING
OF
DECI-
SIONS.—Subject to the limitations of section 114(g),
final decisions of administrative law judges and the
Secretary under this subsection shall be published in
the Federal Register within 15 days after they are
rendered. The Secretary shall index decisions on ap-
peals of license denials.
(4) CONDUCT
OF
PROCEEDINGS.—Except as
provided in this subsection, proceedings under this
subsection shall be conducted in accordance with
sections 554 (notwithstanding subsection (a)(4) of
such section), 556, and 557 of title 5, United States
Code.
(5) REGULATIONS.—The Secretary shall issue
such regulations as are necessary to carry out this
subsection.
(6) OTHER
RIGHTS
NOT
AFFECTED.—The
rights granted by this subsection do not abridge any
other rights provided by law.
(7) EFFECTIVE
DATE.—This subsection shall
take effect 120 days after the date of the enactment
of this Act. Regulations implementing this sub-
176
section shall be promulgated no later than such ef-
fective date.
SEC. 113. ENFORCEMENT.
(a) GENERAL AUTHORITY AND DESIGNATION.—
(1) POLICY
GUIDANCE
ON
ENFORCEMENT.—
The Secretary, in consultation with the Secretary of
the Treasury and the heads of other appropriate de-
partments and agencies, shall be responsible for pro-
viding policy guidance on the enforcement of this
title.
(2) GENERAL AUTHORITIES.—(A) To the extent
necessary or appropriate to the enforcement of this
title or to the imposition of any penalty, forfeiture,
or liability arising under the Export Administration
Act of 1979, officers or employees of the Depart-
ment of Commerce designated by the Secretary and
officers and employees of the United States Customs
Service designated by the Commissioner may exer-
cise the enforcement authorities described in para-
graph (3).
(B) In carrying out the enforcement authorities
described in paragraph (3), the Commissioner of
Customs, and employees of the United States Cus-
toms Service designated by the Commissioner, may
make investigations within or outside the United
177
States and at those ports of entry or exit from the
United States where officers of the United States
Customs Service are authorized by law to carry out
such enforcement responsibilities. Subject to para-
graph (3), the United States Customs Service is au-
thorized, in the enforcement of this title, to search,
detain (after search), and seize commodities or tech-
nology at those ports of entry or exit from the Unit-
ed States where officers of the Customs Service are
authorized by law to conduct such searches, deten-
tions, and seizures, and at those places outside the
United States where the Customs Service, pursuant
to agreements or other arrangements with other
countries, is authorized to perform enforcement ac-
tivities.
(C) In carrying out the enforcement authorities
described in paragraph (3), the Secretary, and offi-
cers and employees of the Department of Commerce
designated by the Secretary, may make investiga-
tions within the United States, and shall conduct,
outside the United States, pre-license and post-ship-
ment verifications of items licensed for export and
investigations in the enforcement of section 108. The
Secretary, and officers and employees of the Depart-
ment of Commerce designated by the Secretary, are
178
authorized to search, detain (after search), and seize
items at those places within the United States other
than those ports and borders specified in subpara-
graph (B). The search, detention (after search), or
seizure of items at those ports and borders specified
in subparagraph (B) may be conducted by officers
and employees of the Department of Commerce only
with the concurrence of the Commissioner of Cus-
toms or a person designated by the Commissioner.
(D) The Secretary and the Commissioner of
Customs may enter into agreements and arrange-
ments for the enforcement of this title, including for-
eign investigations and information exchange.
(3) SPECIFIC AUTHORITIES.—(A) Any officer or
employee designated under paragraph (2) may do
the following in carrying out the enforcement au-
thority under this title:
(i) Make investigations of, obtain informa-
tion from, make inspection of any books,
records, or reports (including any writings re-
quired to be kept by the Secretary), premises,
or property of, and take the sworn testimony of,
any person.
(ii) Administer oaths or affirmations, and
by subpoena require any person to appear and
179
testify or to appear and produce books, records,
and other writings, or both. In the case of con-
tumacy by, or refusal to obey a subpoena issued
to, any such person, a district court of the
United States, after notice to any such person
and a hearing, shall have jurisdiction to issue
an order requiring such person to appear and
give testimony or to appear and produce books,
records, and other writings, or both. Any failure
to obey such order of the court may be pun-
ished by such court as a contempt thereof.
(B)(i) Any officer or employee of the Office of
Export Enforcement of the Department of Com-
merce who is designated by the Secretary under
paragraph (2), and any officer or employee of the
United States Customs Service who is designated by
the Commissioner of Customs under paragraph (2),
may do the following in carrying out the enforce-
ment authority under this title:
(I) Execute any warrant or other process
issued by a court or officer of competent juris-
diction with respect to the enforcement of this
title.
(II) Make arrests without warrant for any
violation of this title committed in his or her
180
presence or view, or if the officer or employee
has probable cause to believe that the person to
be arrested has committed, is committing, or is
about to commit such a violation.
(III) Carry firearms in carrying out any
activity under subclause (I) or (II).
(ii) The exercise of authorities under clause (i)
by officers and employers of the Office of Export
Enforcement of the Department of Commerce shall
be pursuant to guidelines approved by the Attorney
General.
(C) Any officer or employee of the United
States Customs Service designated by the Commis-
sioner of Customs under paragraph (2) may do the
following in carrying out the enforcement authority
under this title:
(i) Stop, search, and examine a vehicle,
vessel, aircraft, or person on which or whom the
officer or employee has reasonable cause to sus-
pect there is any item that has been, is being,
or is about to be exported from or transited
through the United States in violation of this
title.
(ii) Detain and search any package or con-
tainer in which the officer or employee has rea-
181
sonable cause to suspect there is any item that
has been, is being, or is about to be exported
from or transited through the United States in
violation of this title.
(D) Any officer or employee designated under
paragraph (2) may detain (after search under sub-
paragraph (C)) or seize any item, for purposes of se-
curing for trial or forfeiture to the United States, on
or about a vehicle, vessel, aircraft, or person de-
scribed in subparagraph (C)(i), or in a package or
container described in subparagraph (C)(ii), if the
officer or employee has probable cause to believe the
item has been, is being, or is about to be exported
from or transited through the United States in viola-
tion of this title.
(4) OTHER AUTHORITIES NOT AFFECTED.—The
authorities conferred by this section are in addition
to any authorities conferred under other laws.
(b) REFERRAL OF CASES.—All cases involving viola-
tions of this title shall be referred to the Secretary for
purposes of determining civil penalties and administrative
sanctions under section 110(c), or to the Attorney General
for criminal action in accordance with this title.
(c) UNDERCOVER INVESTIGATION OPERATIONS.—
182
(1) USE OF FUNDS.—With respect to any un-
dercover investigative operation conducted by the Of-
fice of Export Enforcement of the Department of
Commerce (hereafter in this subsection referred to
as ‘‘OEE’’) necessary for the detection and prosecu-
tion of violations of this title—
(A) funds made available for export en-
forcement under this title may be used to pur-
chase property, buildings, and other facilities,
and to lease space within the United States,
without regard to sections 1341 and 3324 of
title 31, United States Code, the third undesig-
nated paragraph under the heading of ‘‘MIS-
CELLANEOUS’’ of the Act of March 3, 1877, (40
U.S.C. 34), sections 3732(a) and 3741 of the
Revised Statutes of the United States (41
U.S.C. 11(a) and 22), and subsections (a) and
(c) of section 304, and section 305 of the Fed-
eral Property and Administrative Services Act
of 1949 (41 U.S.C. 254(a) and (c) and 255),
(B) funds made available for export en-
forcement under this title may be used to estab-
lish or to acquire proprietary corporations or
business entities as part of an undercover oper-
ation, and to operate such corporations or busi-
183
ness entities on a commercial basis, without re-
gard to section 9102 of title 31, United States
Code,
(C) funds made available for export en-
forcement under this title and the proceeds
from undercover operations may be deposited in
banks or other financial institutions without re-
gard to the provisions of section 648 of title 18,
United States Code, and section 3302 of title
31, United States Code, and
(D) the proceeds from undercover oper-
ations may be used to offset necessary and rea-
sonable expenses incurred in such operations
without regard to the provisions of section 3302
of title 31, United States Code,
if the Director of OEE (or an officer or employee
designated by the Director) certifies, in writing, that
the action authorized by subparagraph (A), (B), (C),
or (D) for which the funds would be used is nec-
essary for the conduct of the undercover operation.
(2) DISPOSITION OF BUSINESS ENTITIES.—If a
corporation or business entity established or ac-
quired as part of an undercover operation with a net
value of more than $50,000 is to be liquidated, sold,
or otherwise disposed of, the Director of OEE shall
184
report the circumstances to the Secretary and the
Comptroller General, as much in advance of such
disposition as the Director of OEE or his or her des-
ignee determines is practicable. The proceeds of the
liquidation, sale, or other disposition, after obliga-
tions incurred by the corporation or business enter-
prise are met, shall be deposited in the Treasury of
the United States as miscellaneous receipts.
(3) DEPOSIT OF PROCEEDS.—As soon as the
proceeds from an OEE undercover investigative op-
eration with respect to which an action is authorized
and carried out under this subsection are no longer
necessary for the conduct of such operation, such
proceeds or the balance of such proceeds remaining
at the time shall be deposited into the Treasury of
the United States as miscellaneous receipts.
(4) AUDIT AND REPORT.—(A) The Director of
OEE shall conduct a detailed financial audit of each
OEE undercover investigative operation which is
closed and shall submit the results of the audit in
writing to the Secretary. Not later than 180 days
after an undercover operation is closed, the Sec-
retary shall submit to the Congress a report on the
results of the audit.
185
(B) The Secretary shall submit annually to the
Congress a report, which may be included in the an-
nual report under section 115, specifying the follow-
ing information:
(i) The number of undercover investigative
operations pending as of the end of the period
for which such report is submitted.
(ii) The number of undercover investigative
operations commenced in the 1-year period pre-
ceding the period for which such report is sub-
mitted.
(iii) The number of undercover investiga-
tive operations closed in the 1-year period pre-
ceding the period for which such report is sub-
mitted and, with respect to each such closed un-
dercover operation, the results obtained and any
civil claims made with respect thereto.
(5) DEFINITIONS.—For purposes of paragraph
(4)—
(A) the term ‘‘closed’’, with respect to an
undercover investigative operation, refers to the
earliest point in time at which all criminal pro-
ceedings (other than appeals) pursuant to the
investigative operation are concluded, or covert
186
activities pursuant to such operation are con-
cluded, whichever occurs later;
(B) the terms ‘‘undercover investigative
operation’’ and ‘‘undercover operation’’ mean
any undercover investigative operation con-
ducted by OEE—
(i) in which the gross receipts (exclud-
ing interest earned) exceed $25,000, or ex-
penditures (other than expenditures for
salaries of employees) exceed $75,000, and
(ii) which is exempt from section 3302
or 9102 of title 31, United States Code,
except that clauses (i) and (ii) shall not apply
with respect to the report to the Congress re-
quired by subparagraph (B) of paragraph (4);
and
(C) the term ‘‘employees’’ means employ-
ees, as defined in section 2105 of title 5, United
States Code, of the Department of Commerce.
(d) REFERENCE TO ENFORCEMENT.—For purposes
of this section, a reference to the enforcement of this title
or to a violation of this title includes a reference to the
enforcement or a violation of any regulation, license, or
order issued under this title.
187
SEC. 114. EXPORT CONTROL AUTHORITIES AND PROCE-
DURES.
(a) POLICY GUIDANCE.—
(1) IN GENERAL.—As directed by the Presi-
dent, annual policy guidance shall be issued to pro-
vide detailed implementing guidance to export licens-
ing officials in all appropriate departments and
agencies.
(2) ELEMENTS OF ANNUAL POLICY REVIEW.—
In order to develop such annual policy guidance, ex-
port controls and other regulations to implement
this title shall be reviewed annually. This annual pol-
icy review shall include an evaluation of the benefits
and costs of the imposition, extension, or removal of
controls under this title. This review shall include—
(A) an assessment by the Secretary of the
economic consequences of the imposition, exten-
sion, or removal of controls during the preced-
ing 12 months, including the impact on United
States exports or jobs;
(B) an assessment by the Secretary of
State of the objectives of the controls in effect
during the preceding 12 months, and the extent
to which the controls have served those objec-
tives; and
188
(C) an assessment by the Secretary of De-
fense of the impact that the imposition, exten-
sion, or removal of controls during the preced-
ing 12 months has had on United States na-
tional security.
(b) EXPORT
CONTROL
AUTHORITY
AND
FUNC-
TIONS.—
(1) IN GENERAL.—Unless otherwise reserved to
the President or a department or agency outside the
Department of Commerce, all power, authority, and
discretion conferred by this title shall be exercised by
the Secretary.
(2) DELEGATION OF FUNCTIONS OF THE SEC-
RETARY.—The Secretary may delegate any function
under this title to the Under Secretary of Commerce
for Export Administration appointed under sub-
section (d) or to any other officer of the Department
of Commerce.
(c) EXPORT CONTROL POLICY COMMITTEE.—
(1) ESTABLISHMENT.—There is established an
Export Control Policy Committee (hereafter in this
subsection referred to as the ‘‘Committee’’).
(2) FUNCTIONS.—The Committee shall—
189
(A) provide policy guidance and advice to
the President on export control issues under
this title;
(B) review policy recommendations pro-
posed by the Secretary and other members of
the Committee; and
(C) receive policy recommendations from
other agencies and resolve any policy disputes
among departments and agencies under this
title.
(3) MEMBERSHIP.—The Committee shall be
comprised of—
(A) the Secretary;
(B) the Secretary of Defense;
(C) the Secretary of Energy;
(D) the Secretary of State;
(E) the National Security Adviser;
(F) the National Economic Adviser;
(G) the Secretary of the Treasury;
(H) the United States Trade Representa-
tive; and
(I) the Director of the Arms Control and
Disarmament Agency.
190
(4) CHAIR.—The Committee shall be jointly
chaired by the National Economic Adviser and the
National Security Adviser.
(5) DELEGATION; OTHER REPRESENTATIVES.—
A member of the Committee under paragraph (3)
may designate the deputy head of his or her depart-
ment or agency to serve in his or her absence as a
member of the Committee, but this authority may
not be delegated to any other individual. The Chairs
may also invite the temporary participation in the
Committee’s meetings of representatives from other
offices and agencies as appropriate to the issues
under consideration.
(6) MEETINGS.—The Secretary or either Chair
of the Committee may call a meeting of the Commit-
tee. Meetings shall not be subject to section 552b of
title 5, United States Code.
(d) UNDER SECRETARY OF COMMERCE; ASSISTANT
SECRETARIES.—
(1) APPOINTMENT.—The President shall ap-
point, by and with the advice and consent of the
Senate, an Under Secretary of Commerce for Export
Administration who shall carry out all functions of
the Secretary under this title and other provisions of
law relating to national security, as the Secretary
191
may delegate. The President shall appoint, by and
with the advice and consent of the Senate, two As-
sistant Secretaries of Commerce to assist the Under
Secretary in carrying out such functions.
(2) TRANSITION
PROVISIONS.—Those individ-
uals serving in the positions of Under Secretary of
Commerce for Export Administration and Assistant
Secretaries of Commerce under section 15(a) of the
Export Administration Act of 1979, on the day be-
fore the date of the enactment of this Act, shall be
deemed to have been appointed under paragraph (1)
as of such date of enactment.
(e) ISSUANCE OF REGULATIONS.—The President and
the Secretary may issue such regulations as are necessary
to carry out this title. Any such regulations the purpose
of which is to carry out section 105 or 106 may be issued
only after the regulations are submitted for review to such
departments or agencies as the President considers appro-
priate, and to any appropriate export advisory committee
appointed under section 104(f). The preceding sentence
does not require the concurrence or approval of any offi-
cial, department, or agency to which such regulations are
submitted.
(f) AMENDMENTS
TO REGULATIONS.—If the Sec-
retary proposes to amend regulations issued under this
192
title, the Secretary shall report to the Committee on Bank-
ing, Housing, and Urban Affairs of the Senate and the
Committee on Foreign Affairs of the House of Representa-
tives on the intent and rationale of such amendments.
Such report shall evaluate the cost and burden to the
United States exporters of the proposed amendments in
relation to any enhancement of licensing objectives. The
Secretary shall consult with the appropriate export advi-
sory committees appointed under section 104(f) in formu-
lating or amending regulations issued under this title.
(g) CONFIDENTIALITY OF INFORMATION.—
(1) EXEMPTIONS FROM DISCLOSURE.—
(A) Except as otherwise provided by the
third sentence of section 108(b)(2), information
obtained under the Export Administration Act
of 1979 and its predecessor statutes on or be-
fore June 30, 1980, which is deemed confiden-
tial, including Shipper’s Export Declarations, or
with reference to which a request for confiden-
tial treatment is made by the person furnishing
such information, shall be exempt from disclo-
sure under section 552 of title 5, United States
Code, and such information shall not be pub-
lished or disclosed unless the Secretary deter-
193
mines that the withholding thereof is contrary
to the national interest.
(B) Except as otherwise provided by the
third sentence of section 108(b)(2), information
obtained under this title or under the Export
Administration Act of 1979 after June 30,
1980, may be withheld from disclosure only to
the extent permitted by statute, except that in-
formation submitted, obtained, or considered in
connection with an application for an export li-
cense or other export authorization under the
Export Administration Act of 1979 or this title,
including the export license or other export au-
thorization itself, classification requests de-
scribed in section 109(h)(1), information ob-
tained during the course of a foreign availabil-
ity assessment, information or evidence ob-
tained in the course of any investigation, and
information obtained or furnished under this
title in connection with international agree-
ments, treaties, or obligations shall be withheld
from public disclosure unless the release of such
information is determined by the Secretary to
be in the national interest.
(2) INFORMATION TO CONGRESS AND GAO.—
194
(A) IN
GENERAL.—Nothing in this title
shall be construed as authorizing the withhold-
ing of information from the Congress or from
the General Accounting Office.
(B) AVAILABILITY TO THE CONGRESS.—
(i) IN GENERAL.—All information ob-
tained at any time under this title or pre-
vious Acts regarding the control of exports,
including any report or license application
required under this title, shall be made
available to any committee or subcommit-
tee of Congress of appropriate jurisdiction
upon the request of the chairman or rank-
ing minority member of such committee or
subcommittee.
(ii) PROHIBITION ON FURTHER DIS-
CLOSURE.—No committee, subcommittee,
or Member of Congress shall disclose any
information obtained under this title or
previous Acts regarding the control of ex-
ports which is submitted on a confidential
basis to the Congress under clause (i) un-
less the full committee to which the infor-
mation is made available determines that
195
the withholding of the information is con-
trary to the national interest.
(C) AVAILABILITY TO THE GAO.—
(i) IN
GENERAL.—Notwithstanding
paragraph (1), information referred to in
subparagraph (B) shall, consistent with
the protection of intelligence, counterintel-
ligence, and law enforcement sources,
methods, and activities, as determined by
the agency that originally obtained the in-
formation, and consistent with the provi-
sions of section 716 of title 31, United
States Code, be made available only by the
agency, upon request, to the Comptroller
General of the United States or to any of-
ficer or employee of the General Account-
ing Office authorized by the Comptroller
General to have access to such informa-
tion.
(ii) PROHIBITION ON FURTHER DIS-
CLOSURES.—No officer or employee of the
General Accounting Office shall disclose,
except to the Congress in accordance with
this paragraph, any such information
which is submitted on a confidential basis
196
and from which any individual can be iden-
tified.
(3) INFORMATION
EXCHANGE.—Notwithstand-
ing paragraph (1), the Secretary and the Commis-
sioner of Customs shall exchange licensing and en-
forcement information with each other which is nec-
essary to facilitate enforcement efforts and effective
license decisions.
(4) PENALTIES
FOR
DISCLOSURE
OF
CON-
FIDENTIAL INFORMATION.—(A) Any officer or em-
ployee of the United States, or any department or
agency thereof, who publishes, divulges, discloses, or
makes known in any manner or to any extent not
authorized by law any information under this title or
the Export Administration Act of 1979 that—
(i) he or she obtains in the course of his
or her employment or official duties or by rea-
son of any examination or investigation made
by, or report or record made to or filed with,
such department or agency, or officer or em-
ployee thereof, and
(ii) is exempt from disclosure under this
subsection,
shall be subject to the penalties set forth in subpara-
graph (B).
197
(B) The penalties for a violation under sub-
paragraph (A) are as follows:
(i) If the officer or employee acted know-
ingly, he or she shall be fined not more than
$10,000, or imprisoned not more than one year,
or both, and shall be removed from office or
employment.
(ii) The officer or employee shall, either in
addition to or in lieu of any other penalty that
may be imposed, be subject to a civil penalty of
not more than $1,000 imposed by the Secretary
under section 110(c) for each violation under
subparagraph (A).
(h) AUTHORITY FOR SEMINAR AND PUBLICATIONS
FUND.—The Secretary is authorized to cooperate with
public agencies, other governments, international organi-
zations, private individuals, private associations, and other
groups in connection with seminars, publications, and re-
lated activities to carry out export activities, including
educating the public or government officials on the appli-
cation of this title and the regulations issued under this
title. The Secretary is further authorized to accept con-
tributions of funds, property, or services in connection
with such activities to recover the cost of such programs
and activities. Contributions may include payments for