(C) in paragraph (5), by striking ‘‘304’’ 
and inserting ‘‘308’’. 
(d) TABLE OF CONTENTS.—The table of contents for 
chapter 9 of title 13, United States Code, is amended to 
read as follows: 
‘‘301. Collection and publication. 
‘‘302. Conferences and seminars. 
‘‘303. Automated Export System registrations for filers. 
‘‘304. Blocking prohibited or restricted exports. 
‘‘305. Fees and charges. 
‘‘306. Rules, regulations, and orders. 
‘‘307. Secretary of Treasury functions. 
‘‘308. Filing export information, delayed filings, penalties for failure to file. 
‘‘309. Penalties for unlawful export information activities. 
‘‘310. Delegation of functions. 
‘‘311. Relationship to general census law. 
‘‘312. Definitions.’’. 
SEC. 106. AUTHORIZATION OF APPROPRIATIONS. 
There are authorized to be appropriated such sums 
as may be necessary to carry out the amendments made 
by this Act. 
TITLE II—EXPORT 
ENFORCEMENT ENHANCEMENT 
SEC. 201. SHORT TITLE. 
This title may be cited as the ‘‘Export Enforcement 
Act of 2008’’. 
SEC. 202. DECLARATION OF POLICY. 
The Congress declares that, at a time of evolving 
threats and changing relationships with other countries, 
as well as rapid technological change and an increasingly 
globalized economy, United States strategic export con-
trols are in urgent need of a comprehensive review in order 
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to assure those controls are achieving their intended pur-
poses of protecting the national security of the United 
States in the Global War on Terrorism and of promoting 
the economic and foreign policy interests of the United 
States, in particular by assuring that— 
(1) export authorization procedures are prop-
erly designed to prioritize which exports may be ap-
proved quickly for trusted partners of the United 
States and which require greater scrutiny in order to 
safeguard national interests; 
(2) strategic export controls appropriately and 
effectively identify and protect technologies critical 
to United States national security interests; and 
(3) coordination among the responsible depart-
ments and agencies of the Government of the United 
States is improved in order to enhance efficiency, in-
formation sharing, and the consistent execution of 
United States policy. 
SEC. 203. ENFORCEMENT. 
Section 12 of the Export Administration Act of 1979 
(50 U.S.C. App. 2411) is amended as follows: 
(1) Subsection (a) is amended by striking para-
graphs (1), (2), (3), and (4) and inserting after ‘‘(a) 
GENERAL AUTHORITY.—’’ the following: 
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‘‘(1) IN GENERAL.—To the extent necessary or 
appropriate to the enforcement of this Act or to the 
imposition of any penalty, forfeiture, or liability aris-
ing under this Act— 
‘‘(A) the head of any department or agency 
exercising any function under this Act (and of-
ficers or employees of such department or agen-
cy specifically designated by the head thereof) 
may conduct investigations within the United 
States; 
‘‘(B) the Secretary of Homeland Security 
(and officers or employees of U.S. Immigration 
and Customs Enforcement specifically des-
ignated by the Secretary of the Department of 
Homeland Security) and the Secretary of Com-
merce (and officers and employees of the Office 
of Export Enforcement of the Department of 
Commerce specifically designated by the Sec-
retary of Commerce) may conduct investiga-
tions outside of the United States; 
‘‘(C) the head of any department or agency 
exercising any function under this Act (and 
such officers or employees) may obtain informa-
tion from, require reports or the keeping of 
records by, inspect the books, records, and 
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other writings, premises, or property of, and 
take the sworn testimony of, any person; 
‘‘(D)(i) such officers or employees may ad-
minister oaths or affirmations, and may by sub-
poena require any person to appear and testify 
or to appear and produce books, records, and 
other writings, or both; and 
‘‘(ii) in the case of contumacy by, or re-
fusal to obey a subpoena issued to, any such 
person, a district court of the United States, 
after notice to any such person and hearing, 
shall have jurisdiction to issue an order requir-
ing such person to appear and give testimony or 
to appear and produce books, records, and 
other writings, or both, and any failure to obey 
such order of the court may be punished by 
such court as a contempt thereof; and 
‘‘(E) the Secretary (and officers or employ-
ees of the Department of Commerce designated 
by the Secretary) may conduct, outside the 
United States, pre-license checks and post-ship-
ment verifications of items licensed for export. 
‘‘(2) AUTHORITY OF IMMIGRATION AND CUS-
TOMS ENFORCEMENT AND CUSTOMS AND BORDER 
PROTECTION.— 
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‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), U.S. Immigration and Customs En-
forcement and U.S. Customs and Border Pro-
tection are authorized, in the enforcement of 
this Act— 
‘‘(i) to search, detain (after search), 
and seize goods or technology at those 
places outside the United States where 
such entities are authorized, pursuant to 
agreements or other arrangements with 
other countries, to perform enforcement 
activities; and 
‘‘(ii) to conduct such activities at 
those ports of entry or exit from the 
United States where officers of U.S. Immi-
gration and Customs Enforcement and 
U.S. Customs and Border Protection are 
authorized by law to conduct such activi-
ties. 
‘‘(B) SEARCHES AND SEIZURES.—An offi-
cer of U.S. Immigration and Customs Enforce-
ment or U.S. Customs and Border Protection 
may do the following in carrying out enforce-
ment authority under this Act: 
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‘‘(i) Stop, search, and examine a vehi-
cle, vessel, aircraft, person, package, or 
container on which or whom such officer 
has reasonable cause to suspect there are 
any goods or technology that has been, is 
being, or is about to be exported from the 
United States in violation of this Act. 
‘‘(ii) Detain (after search) or seize 
and secure for trial any goods or tech-
nology on or about such vehicle, vessel, air-
craft, or person, or in such package or con-
tainer, if such officer has probable cause to 
believe the goods or technology has been, is 
being, or is about to be exported from the 
United States in violation of this Act. 
‘‘(iii) Make arrests without warrant 
for any violation of this Act committed in 
the presence or view of the officer or if the 
officer has probable cause to believe that 
the person to be arrested has committed or 
is committing such a violation. 
‘‘(C) ARREST AUTHORITY.—The arrest au-
thority conferred by subparagraph (B)(iii) is in 
addition to any arrest authority under other 
laws. 
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‘‘(D) DETENTION OF GOODS.—U.S. Immi-
gration and Customs Enforcement and U.S. 
Customs and Border Protection may not detain 
for more than 45 days any shipment of goods 
or technology that is eligible for export without 
prior authorization under this Act. In a case in 
which such detention is on account of a dis-
agreement between the Secretary and the head 
of any other department or agency with export 
license authority under other provisions of law 
concerning the export license requirements for 
such goods or technology, such disagreement 
shall be resolved within that 45-day period. At 
the end of that 45-day period, U.S. Immigra-
tion and Customs Enforcement or U.S. Cus-
toms and Border Protection (as the case may 
be) shall either release the goods or technology, 
or seize the goods or technology as authorized 
by other provisions of law. 
‘‘(3) ENFORCEMENT.— 
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B)— 
‘‘(i) the Secretary shall have the re-
sponsibility for the enforcement of section 
8; 
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‘‘(ii) in the enforcement of the other 
provisions of this Act, the Secretary is au-
thorized to search, detain (after search), 
and seize goods or technology— 
‘‘(I) at those places within the 
United States other than those ports 
specified in paragraph (2)(A); and 
‘‘(II) at those places outside the 
United States where the Office of Ex-
port Enforcement of the Department 
of Commerce, pursuant to agreements 
or other arrangements with other 
countries, is authorized to perform en-
forcement activities; 
‘‘(iii) the search, detention (after 
search), or seizure of goods or technology 
at those ports and places specified in para-
graph (2)(A) may be conducted by officers 
or employees of the Department of Com-
merce designated by the Secretary, with 
the concurrence of the Secretary of Home-
land Security; and 
‘‘(iv) enforcement activities conducted 
outside the United States, except for pre- 
license 
checks 
and 
post-shipment 
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verifications, shall be undertaken with the 
concurrence of the Secretary of Homeland 
Security. 
‘‘(B) AUTHORITY OF OFFICE OF EXPORT 
ENFORCEMENT.—The Secretary may designate 
any employee of the Office of Export Enforce-
ment of the Department of Commerce to do the 
following in carrying out the enforcement au-
thority conferred by this Act: 
‘‘(i) Execute any warrant or other 
process issued by a court or officer of com-
petent jurisdiction. 
‘‘(ii) Make arrests without warrant for 
any offense against the United States com-
mitted in such officer’s presence or view or 
any felony offense against the United 
States, if such officer has probable cause 
to believe that the person to be arrested 
has committed or is committing that felony 
offense. 
‘‘(iii) Carry firearms. 
‘‘(4) ATTORNEY
GENERAL
GUIDELINES.—The 
authorities conferred by the Export Enforcement 
Act of 2008 under paragraph (3) shall be exercised 
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consistent with guidelines approved by the Attorney 
General.’’. 
(2) Subsection (a) is further amended— 
(A) by striking paragraphs (6), (7), and 
(8); 
(B) in paragraph (5)— 
(i) by striking ‘‘(5) All’’ and inserting 
‘‘(5) REFERRAL
OF
VIOLATIONS.—All’’; 
and 
(ii) by moving the remaining text 2 
ems to the right; and 
(C) by inserting after paragraph (5) the 
following: 
‘‘(6) BEST PRACTICES GUIDELINES.— 
‘‘(A) IN GENERAL.—The Secretary, in con-
sultation with the technical advisory committees 
established under section 5(h) and exporters, 
shippers, trade facilitators, freight forwarders, 
and reexporters representative of their respec-
tive industries, shall continue to publish and 
update ‘best practices’ guidelines to help those 
industries develop and implement, on a vol-
untary basis, effective export control programs 
in compliance with this Act. 
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‘‘(B) EXPORT
COMPLIANCE
PROGRAM.— 
The existence of an effective export compliance 
program and high quality overall export compli-
ance efforts are factors that ordinarily should 
be given weight as mitigating factors in civil 
penalty enforcement actions under this Act. 
‘‘(7) REFERENCE
TO
ENFORCEMENT.—For 
purposes of this section, a reference to the enforce-
ment of this Act or to a violation of this Act in-
cludes a reference to the enforcement or a violation 
of any regulation, order, or license issued under this 
Act, and the enforcement or violation of the Export 
Administration Regulations as maintained and 
amended under the authority of the International 
Emergency Economic Powers Act (50 U.S.C. 1701 
et seq.), or any order or license issued pursuant to 
those regulations.’’. 
(3) Subsection (c)(3) is amended by striking 
‘‘Commissioner of Customs’’ each place it appears 
and inserting ‘‘Secretary of Homeland Security’’. 
(4) Section 12 is further amended by adding at 
the end the following new subsections: 
‘‘(f) FORFEITURE.— 
‘‘(1) IN GENERAL.—Any tangible items lawfully 
seized under subsection (a) by designated officers or 
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employees shall be subject to forfeiture to the United 
States. 
‘‘(2) PROCEDURES.—Any seizure or forfeiture 
under this subsection shall be carried out in accord-
ance with the procedures set forth in chapter 46 of 
title 18, United States Code. 
‘‘(g) UNDERCOVER INVESTIGATION OPERATIONS.— 
‘‘(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 that is necessary for the detection and 
prosecution of violations of this Act— 
‘‘(A) funds made available for export en-
forcement under this Act may be used to pur-
chase property, buildings, and other facilities, 
and to lease equipment, conveyances, and space 
within the United States, without regard to sec-
tions 1341 and 3324 of title 31, United States 
Code, section 8141 of title 40, United States 
Code, sections 3732(a) and 3741 of the Revised 
Statutes of the United States (41 U.S.C. 11(a) 
and 22), and sections 304(a), 304A, 304B, 
304C, and 305 of the Federal Property and Ad-
ministrative Services Act of 1949 (41 U.S.C. 
254(a), 254b, 254c, 254d, and 255); 
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‘‘(2) DISPOSITION OF BUSINESS ENTITIES.—If 
a corporation or business entity established or ac-
quired as part of an undercover operation has a net 
value of more than $250,000 and is to be liquidated, 
sold, or otherwise disposed of, the Secretary shall re-
port the circumstances to the Comptroller General of 
the United States as much in advance of such dis-
position as the Secretary determines is practicable. 
The proceeds of the liquidation, sale, or other dis-
position, after obligations incurred by the corpora-
tion or business enterprise are met, shall be depos-
ited in the Treasury of the United States as mis-
cellaneous receipts. Any property or equipment pur-
chased pursuant to paragraph (1) may be retained 
for subsequent use in undercover operations under 
this section. When such property or equipment is no 
longer needed, it shall be considered surplus and dis-
posed of as surplus government property. 
‘‘(3) DEPOSIT OF PROCEEDS.—As soon as the 
proceeds from an undercover investigative operation 
of the Office of Export Enforcement of the Depart-
ment of Commerce with respect to which an action 
is authorized and carried out under this subsection 
are no longer needed for the conduct of such oper-
ation, the proceeds or the balance of the proceeds re-
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maining at the time shall be deposited into the 
Treasury of the United States as miscellaneous re-
ceipts. 
‘‘(4) AUDIT AND REPORT.— 
‘‘(A) AUDIT.—The Secretary shall conduct 
a detailed financial audit of each closed under-
cover investigative operation of the Office of 
Export Enforcement of the Department of 
Commerce. Not later than 180 days after an 
undercover operation is closed, the Secretary 
shall submit to the Congress a report on the re-
sults of the audit. 
‘‘(B) REPORT.—The Secretary shall sub-
mit annually to the Congress a report, which 
may be included in the annual report under sec-
tion 14, including the following information: 
‘‘(i) The number of undercover inves-
tigative operations pending as of the end of 
the period for which the report is sub-
mitted. 
‘‘(ii) The number of undercover inves-
tigative operations commenced in the 1- 
year period preceding the period for which 
the report is submitted. 
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‘‘(iii) The number of undercover in-
vestigative operations closed in the 1-year 
period preceding the period for which such 
report is submitted and, with respect to 
each such closed undercover operation, the 
results obtained and any civil claims made 
with respect to the operation. 
‘‘(C) DEFINITIONS.—In this paragraph: 
‘‘(i) CLOSED.—The term ‘closed’, with 
respect to an undercover investigative oper-
ation, refers to the earliest point in time at 
which all criminal proceedings (other than 
appeals) pursuant to the investigative oper-
ation are concluded, or covert activities 
pursuant to such operation are concluded, 
whichever occurs later. 
‘‘(ii) 
UNDERCOVER
INVESTIGATIVE 
OPERATION
AND
UNDERCOVER
OPER-
ATION.— 
‘‘(I) IN
GENERAL.—The terms 
‘undercover investigative operation’ 
and ‘undercover operation’ mean any 
undercover 
investigative 
operation 
conducted by the Office of Export En-
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forcement of the Department of Com-
merce— 
‘‘(aa) in which the gross re-
ceipts (excluding interest earned) 
exceed $25,000, or expenditures 
(other than expenditures for sala-
ries 
of 
employees) 
exceed 
$75,000; and 
‘‘(bb) which is exempt from 
section 3302 or 9102 of title 31, 
United States Code. 
‘‘(II) EXCEPTION.—Items (aa) 
and (bb) of subclause (I) shall not 
apply with respect to the report to the 
Congress required by subparagraph 
(2)(B). 
‘‘(h) AUTHORIZATION FOR BUREAU OF INDUSTRY 
AND SECURITY.—The Secretary may authorize, without 
fiscal year limitation, the expenditure of funds transferred 
to, paid to, received by, or made available to the Bureau 
of Industry and Security of the Department of Commerce 
as a reimbursement in accordance with section 9703 of 
title 31, United States Code (as added by Public Law 
102–393).’’. 
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SEC. 204. AUTHORIZATION OF APPROPRIATIONS. 
Section 18 of the Export Administration Act of 1979 
(50 U.S.C. App. 2417) is amended to read as follows: 
‘‘AUTHORIZATION OF APPROPRIATIONS 
‘‘SEC. 18. There are authorized to be appropriated 
to the Department of Commerce to carry out section 12 
of this Act such sums as may be necessary for each fiscal 
year.’’. 
SEC. 205. TERMINATION DATE. 
Section 20 of the Export Administration Act of 1979 
(50 U.S.C. App. 2419) is amended by inserting before the 
period at the end the following: ‘‘, except that section 12 
shall not terminate’’. 
SEC. 206. DESIGNATION OF DESTINATIONS OF DIVERSION 
CONCERN. 
(a) EFFORTS WITH UAE.—The Congress recognizes 
efforts taken by the United Arab Emirates, in coordina-
tion with the Secretary of Commerce, in response to inter-
national concerns over the diversion of dual-use items to 
prohibited destinations, parties, or uses, and urges the 
Secretary of Commerce to continue to work with the Gov-
ernment of the United Arab Emirates to ensure that such 
efforts are successful in stopping such diversion of dual- 
use items. 
(b) COUNTRY OF DIVERSION CONCERN.—Not later 
than 60 days after the date of the enactment of this Act, 
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the Secretary of Commerce shall amend the Export Ad-
ministration Regulations by— 
(1) creating a designation of a country as a 
‘‘country of diversion concern’’ based on criteria that 
include, but are not limited to— 
(A) volume of dual-use items transshipped 
through the country; 
(B) volume and proportion of trade by the 
country with countries of concern for prolifera-
tion or terrorism; 
(C) inadequate export or reexport controls 
in the country; 
(D) demonstrated inability to control diver-
sion activities in the country; and 
(E) unwillingness or inability of the gov-
ernment of the country to cooperate with the 
United States in efforts to stop illegal transfers 
of dual-use items; and 
(2) requiring the imposition of additional re-
strictions on exports of dual-use items to a country 
of diversion concern, including, but not limited to, 
some or all of the following: 
(A) Implementing more stringent review 
policies. 
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(B) Imposing additional license restric-
tions. 
(C) Requiring more frequent and more 
thorough end-user and end-use checks. 
(c) REPORT.—Not later than 90 days after the date 
of the enactment of this Act, the Secretary of Commerce 
shall submit to the appropriate congressional committees 
a report describing in detail past, current, and future ef-
forts undertaken or planned by the Governments of the 
United Arab Emirates, Malaysia, and the United States 
to ensure that dual-use items are not diverted to countries, 
entities, or uses of concern for proliferation or terrorism 
from the territory or jurisdiction of Malaysia or the United 
Arab Emirates. 
(d) RESTRICTIONS.—Unless the Secretary of Com-
merce makes the certification described in subsection (e) 
with respect to a country listed in that subsection, the Sec-
retary shall by regulation impose the following measures 
with respect to that country: 
(1) The Secretary shall designate the country 
as a country of diversion concern under subsection 
(b). 
(2) The Secretary shall impose additional re-
strictions on exports of dual-use items to the coun-
try, including restrictions on nuclear dual-use items. 
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(e) CERTIFICATION.—The certification under this 
subsection is a certification by the Secretary of Commerce 
to the appropriate congressional committees, not later 
than 180 days after the date of the enactment of this Act, 
and not later than the end of each of the next 5 1-year 
periods, with respect to each of the countries of the United 
Arab Emirates and Malaysia that the Government of such 
country— 
(1) has adopted and is vigorously implementing 
effective national laws and regulations controlling 
the export and transshipment of dual-use items; and 
(2) is taking all reasonable steps to ensure that 
dual-use items within its territory and jurisdiction 
are not diverted to countries, entities, or uses of con-
cern for proliferation or terrorism. 
(f) SUBSEQUENT CERTIFICATIONS.—If the Secretary 
is unable to make a certification with respect to a country 
under subsection (e), the Secretary may at any time there-
after make such a certification with respect to that coun-
try. 
(g) AUTHORIZATION OF APPROPRIATIONS.— 
(1) IN GENERAL.—There are authorized to ap-
propriated for each fiscal year such sums as may be 
necessary to carry out this section. 
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(2) FUNDS
FOR
ADDITIONAL
PERSONNEL.— 
There are authorized to be appropriated for each fis-
cal year $10,000,000 for additional personnel in the 
Department of Commerce to conduct end-use checks 
and export control compliance in the United Arab 
Emirates and Malaysia. 
SEC. 207. VALIDATED END-USER PROGRAM REVIEW. 
(a) AUDIT.—The Comptroller General shall conduct, 
and report to the appropriate congressional committees 
the results of, an audit of the Validated End-User pro-
gram operated by the Department of Commerce. In doing 
so, the Comptroller General shall examine whether the na-
tional security of the United States is sufficiently pro-
tected by Validated End-User program procedures as they 
are designed and carried out, including those related to 
selecting, reviewing, and approving candidates for Vali-
dated End-User status, monitoring compliance by Vali-
dated End-Users with export control laws and regulations 
of the United States, and monitoring individual exports 
under the Validated End-User program. 
(b) RESTRICTION ON DESIGNATION OF ADDITIONAL 
VALIDATED END-USERS.—The Secretary of Commerce 
may not designate additional Validated End-Users until 
the end of the 6-month period beginning on the date on 
which the report on the audit required under subsection 
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(a) is submitted to the appropriate congressional commit-
tees. 
(c) CONSULTATION PRIOR TO DESIGNATION.—The 
Secretary of Commerce shall consult with the appropriate 
congressional committees at least 30 days before desig-
nating any Validated End-User. 
SEC. 208. ANNUAL REPORT ON TRANSFERS OF MILITARILY 
SENSITIVE TECHNOLOGY TO COUNTRIES AND 
ENTITIES OF CONCERN. 
(a) ANNUAL REPORT.—Not later than March 30 of 
each year beginning in 2009, the President shall transmit 
to the Congress a report on transfers to countries and en-
tities of concern during the preceding calendar year of the 
most significant categories of United States technologies 
and technical information with potential military applica-
tions. 
(b) CONTENTS OF REPORT.—The report required by 
subsection (a) shall include, at a minimum, the following: 
(1) An assessment by the Director of National 
Intelligence of efforts by countries and entities of 
concern to acquire technologies and technical infor-
mation referred to in subsection (a) during the pre-
ceding calendar year. 
(2) An assessment by the Secretary of Defense, 
in consultation with the Joint Chiefs of Staff and 
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the Director of National Intelligence, of the cumu-
lative impact of licenses granted by the United 
States for exports of technologies and technical in-
formation referred to in subsection (a) to countries 
and entities of concern during the preceding 5-cal-
endar year period on— 
(A) the military capabilities of such coun-
tries and entities; and 
(B) countermeasures that may be nec-
essary to overcome the use of such technologies 
and technical information. 
(3) An audit by the Inspectors General of the 
Departments of Defense, State, Commerce, Home-
land Security, Energy, and the Treasury, in con-
sultation with the Director of National Intelligence 
and the Director of the Federal Bureau of Investiga-
tion, of the policies and procedures of the United 
States Government with respect to the export of 
technologies and technical information referred to in 
subsection (a) to countries and entities of concern. 
(c) ADDITIONAL REQUIREMENT
FOR FIRST RE-
PORT.—The first annual report required by subsection (a) 
shall include an assessment by the Inspectors General of 
the Departments of Defense, State, Commerce, Homeland 
Security, Energy, and the Treasury and the Inspector 
VerDate Aug 31 2005 
03:43 Aug 07, 2008
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