HR 4572 IH
109th CONGRESS
1st Session
H. R. 4572
To revise and extend the Export Administration Act of 1979.
IN THE HOUSE OF REPRESENTATIVES
December 16, 2005
Mr. HYDE introduced the following bill; which was referred to the Committee
on International Relations
A BILL
To revise and extend the Export Administration Act of 1979.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Export Administration Renewal Act of
2005'.
SEC. 2. CONGRESSIONAL DECLARATION OF POLICY.
Section 3(a) of the Export Administration Act of 1979 (50 U.S.C. App.
2402(a)) is amended by adding at the end the following new paragraph:
`(15) It is the policy of the United States to utilize the analytic
product of the United States intelligence community with respect to the
consideration of any proposed license under this Act.'.
SEC. 3. GENERAL PROVISIONS.
Section 4 of the Export Administration Act of 1979 (50 U.S.C. App. 2403)
is amended by adding at the end the following new subsection:
`(h) Commodity Classification Review- The President, in consultation with
the Secretary and the heads of other appropriate departments and agencies,
shall conduct a comprehensive review of the commodity classification process
and the Export Control Classification Number (in this Act referred to as the
`ECCN') system, taking into account--
`(1) the potential relevance of industrial technical literature to ECCN
classifications;
`(2) the extent of review for ECCN classifications;
`(3) consistency between United States ECCN definitions and multilateral
export control regime control lists;
`(4) any other applicable laws such as the Arms Export Control Act;
and
`(5) other appropriate considerations, including the global war on
terror.'.
SEC. 4. NATIONAL SECURITY CONTROLS.
Section 5(f)(6) of the Export Administration Act of 1979 (50 U.S.C. App.
2404(f)(6)) is amended by striking `Under Secretary of Commerce for Export
Administration' and inserting `Under Secretary of Commerce for Industry and
Security'.
SEC. 5. VIOLATIONS.
Section 11 of the Export Administration Act of 1979 (50 U.S.C. App. 2410)
is amended--
(1) by striking subsections (a) and (b) and inserting the
following:
`(1) VIOLATIONS BY AN INDIVIDUAL- Any individual who willfully violates,
conspires to violate, or attempts to violate any provision of this Act or
any regulation, license, or order issued under this Act shall be fined up to
10 times the value of the exports involved or $1,000,000, whichever is
greater, imprisoned for not more than 10 years, or both, for each
violation.
`(2) VIOLATIONS BY A PERSON OTHER THAN AN INDIVIDUAL- Any person, other
than an individual, who willfully violates, conspires to violate, or
attempts to violate any provision of this Act or any regulation, license, or
order issued under this Act shall be fined up to 10 times the value of the
exports involved or $5,000,000, whichever is greater, for each
violation.
`(b) Forfeiture of Property Interest and Proceeds-
`(1) FORFEITURE- Any person who is convicted under paragraph (1) or (2)
of subsection (a) shall, in addition to any other penalty, forfeit to the
United States--
`(A) any of that person's security or other interest in, claim
against, or property or contractual rights of any kind in the tangible
items that were the subject of the violation;
`(B) any of that person's security or other interest in, claim
against, or property or contractual rights of any kind in the tangible
property that was used in the export or attempt to export that was the
subject of the violation; and
`(C) any of that person's property constituting, or derived from, any
proceeds obtained directly or indirectly as a result of the
violation.
`(2) PROCEDURES- The procedures in any forfeiture under this subsection,
and the duties and authority of the courts of the United States and the
Attorney General with respect to any forfeiture action under this
subsection, or with respect to any property that may be subject to
forfeiture under this subsection, shall be governed by the provisions of
chapter 46 of title 18, United States Code (relating to criminal
forfeiture), to the same extent as property subject to forfeiture under that
chapter.';
(2) in subsection (c), by striking paragraph (1) and inserting the
following: `(1) The Secretary may impose a civil penalty of up to $500,000
for each violation of a provision of this Act or any regulation, license, or
order issued under this Act. A civil penalty under this paragraph may be in
addition to, or in lieu of, any other liability or penalty which may be
imposed for such a violation.';
(3) by striking subsections (g) and (h) and inserting the
following:
`(g) Violations Defined by Regulation- Nothing in this section shall limit
the authority of the Secretary to define by regulation violations under this
Act.
`(h) Effect of Other Convictions-
`(1) DENIAL OF EXPORT PRIVILEGES- Any person convicted of a violation
described in paragraph (2) may, at the discretion of the Secretary, be
denied export privileges under this Act for a period not to exceed 10 years
from the date of the conviction. The Secretary may also revoke any export
license under this Act in which such person had an interest at the time of
the conviction.
`(2) VIOLATIONS- The violations referred to in paragraph (1) are a
violation of--
`(A) a provision of this Act;
`(B) a provision of the International Emergency Economic Powers Act
(50 U.S.C. 1701 et seq.);
`(C) section 793, 794, or 798 of title 18, United States
Code;
`(D) section 4(b) of the Internal Security Act of 1950 (50 U.S.C.
783(b));
`(E) section 38 of the Arms Export Control Act (22 U.S.C.
2778);
`(F) section 16 of the Trading with the Enemy Act (50 U.S.C. App.
16);
`(G) any regulation, license, or order issued under any provision of
law listed in subparagraph (A), (B), (C), (D), (E), or (F);
`(H) section 371 or 1001 of title 18, United States Code, if in
connection with the export of items subject to this Act or any regulation,
license, or order issued under the International Emergency Economic Powers
Act, or the export of items controlled under the Arms Export Control
Act;
`(I) section 175 of title 18, United States Code;
`(J) a provision of the Atomic Energy Act (42 U.S.C. 201 et
seq.);
`(K) section 831 of title 18, United States Code; or
`(L) section 2332a of title 18, United States Code.
`(3) RELATED PERSONS- The Secretary may exercise the authority under
paragraph (1) with respect to any person related through affiliation,
ownership, control, or position of responsibility to a person convicted of
any violation of a law set forth in paragraph (2), upon a showing of such
relationship with the convicted person. The Secretary shall make such
showing only after providing notice and opportunity for a hearing.';
and
(4) by adding at the end the following new subsection:
`(j) Statute of Limitations-
`(1) IN GENERAL- Except as provided in paragraph (2), a proceeding in
which a civil penalty or other administrative sanction is sought under
subsection (c) may not be commenced more than 5 years after the date on
which the claim first accrued.
`(A) TOLLING- In any case in which a criminal indictment in connection
with actions constituting a violation under subsection (a) is returned
within the time limits prescribed by law for the institution of such
action, the limitation under paragraph (1) for commencing a proceeding to
impose a civil penalty or other administrative sanction under this section
shall, upon the return of the criminal indictment, be tolled against any
person named as a defendant.
`(B) DURATION- The tolling of the limitation with respect to a
defendant under subparagraph (A) as a result of a criminal indictment
shall continue for a period of 6 months beginning on the date on which the
defendant is convicted pursuant to the criminal indictment, the indictment
against the defendant is dismissed, or the criminal action has otherwise
concluded.'.
SEC. 6. UNITED STATES POLICY ON MULTILATERAL EXPORT CONTROL REGIMES.
The Export Administration Act of 1979 is amended by inserting after
section 11C the following new section:
`SEC. 11D. U.S. POLICY ON MULTILATERAL EXPORT CONTROL REGIMES.
`(a) Multilateral Export Control Regimes-
`(1) GENERAL POLICY- It is the policy of the United States to seek
multilateral arrangements that support the national security objectives of
the United States.
`(2) MULTILATERAL EXPORT CONTROL REGIMES- In this section, the term
`multilateral export control regime' means an international agreement or
arrangement among two or more countries, including the United States, a
purpose of which is to coordinate national export control policies of its
members regarding certain items. The term includes regimes such as the
Australia Group (AG), the Wassenaar Arrangement, the Missile Technology
Control Regime (MTCR), and the Nuclear Suppliers Group Dual Use Arrangement
(NSG).
`(3) OBJECTIVES- It is the intent of the Congress that the United States
seek to achieve the following objectives with regard to multilateral export
control regimes:
`(i) PARTICIPATION- Continue its active participation in existing
multilateral export control regimes, in accordance with subsection
(b).
`(ii) STRENGTHEN- Seek to attain the cooperation of members of each
existing and future regime in implementing the standards outlined in
subsection (c) for effective national export control
systems.
`(B) NEW REGIMES- Consider participation in additional multilateral
export control regimes if such participation would serve the national
security interests of the United States.
`(C) REVIEW AND UPDATE- Review and update multilateral regime export
control lists with other members, taking into account--
`(i) national security concerns, including the global war on
terror;
`(ii) the foreign availability of items; and
`(iii) the costs and benefits of controls.
`(D) IMPLEMENTATION BY NONMEMBERS- Encourage countries that are not
members of the multilateral export control regime--
`(i) to strengthen their national export control regimes and improve
enforcement;
`(ii) to adhere to the guidelines of the appropriate multilateral
export control regime;
`(iii) not to undermine an existing multilateral export control
regime by exporting controlled items in a manner inconsistent with the
guidelines of the regime; and
`(iv) to work with member countries in training government officials
on the principles and procedures for implementing effective export
controls.
`(4) TRANSPARENCY OF MULTILATERAL EXPORT CONTROL REGIMES-
`(A) PUBLICATION OF INFORMATION ON EACH EXISTING REGIME- Not later
than 120 days after the date of the enactment of this section, the
Secretary shall, for each multilateral export control regime, to the
extent that it is not inconsistent with the arrangements of that regime
(in the judgment of the Secretary of State) or with the national interest,
publish in the Federal Register and post on the Department of Commerce
website the following information with respect to that regime:
`(i) The purposes of the regime.
`(ii) The members of the regime.
`(iii) The export licensing policy of the regime.
`(iv) The items that are subject to export controls under the
regime, together with all related public notes, and all changes
thereto.
`(v) Any countries, end uses, or end users that are subject to the
export controls of the regime.
`(vi) Rules of interpretation.
`(vii) Major policy actions.
`(viii) The rules and procedures of the regime for establishing and
modifying any matter described in clauses (i) through (vii).
`(B) NEW REGIMES- Not later than 60 days after the United States joins
or organizes a new multilateral export control regime, the Secretary
shall, to the extent that it is not inconsistent with arrangements under
that regime (in the judgment of the Secretary of State) or with the
national interest, publish in the Federal Register and post on the
Department of Commerce website the information described in subparagraphs
(i) through (viii) of subparagraph (A) with respect to the
regime.
`(C) PUBLICATION OF CHANGES- Not later than 60 days after a
multilateral export control regime adopts any change in the information
published under this paragraph, the Secretary shall, to the extent not
inconsistent with the arrangements under that regime (in the judgment of
the Secretary of State) or the national interest, publish such changes in
the Federal Register and post such changes on the Department of Commerce
website.
`(b) Standards for Multilateral Export Control Regimes- It is the intent
of the Congress that the President take steps to establish the following
features in any multilateral export control regime in which the United States
is participating or may participate:
`(1) FULL MEMBERSHIP- Supplier countries should be considered for
membership of the regime based on their acting in accordance with the
objectives and meeting the membership criteria of the regime.
`(2) EFFECTIVE IMPLEMENTATION- The regime promotes implementation of the
regime's rules and guidelines.
`(3) PUBLIC UNDERSTANDING- The regime seeks to enhance public
understanding of the purpose and procedures of the regime.
`(4) EFFECTIVE INTERPRETATION PROCEDURES- The regime has procedures to
promote the uniform and consistent interpretation of its rules and
guidelines.
`(5) ENHANCED COOPERATION WITH REGIME NONMEMBERS- There is agreement
among the members of the regime--
`(A) to cooperate with governments of countries that are not members
of the regime to restrict the export of items controlled by the regime;
and
`(B) to establish an ongoing mechanism in the regime to coordinate
planning and implementation of export control measures related to such
cooperation.
`(6) PERIODIC HIGH LEVEL MEETINGS- There are regular periodic meetings
of high level representatives of the governments of countries that are
members of the regime for the purpose of coordinating export control
policies and issuing policy guidance to members of the regime.
`(7) COMMON LIST OF CONTROLLED ITEMS- There is agreement on a common
list of items controlled by the regime.
`(8) REGULAR UPDATES OF COMMON LIST- There is a procedure for removing
items from the list of controlled items when the control of such items no
longer serves the objectives of the members of the regime, and for adding
items to the list of controlled items when appropriate in light of the
objectives of the regime.
`(9) GLOBAL WAR ON TERROR- There is agreement--
`(A) to prevent the export or diversion of sensitive items to
terrorist individuals and groups; and
`(B) to support the United States and its international partners in
the global war on terror.
`(10) COORDINATION OF LICENSE APPROVAL PROCEDURES- There is coordination
among the members of the regime regarding their national export license
approval procedures, practices, and standards.
`(11) UNDERCUTTING- The regime establishes rules with respect to the
approval of licenses for the export of any item that is controlled pursuant
to the regime, in cases in which a member has denied an export license for
such item to the particular end user for reasons that are relevant to the
purposes of the regime.
`(12) INFORMATION SHARING- There are procedures for the coordination and
exchange of information about export licensing among members of the regime,
including--
`(A) notification of the denial of licenses to export sensitive items
controlled under the regime to countries that are not members of the
regime, in cases in which the reasons for denial are relevant to the
purposes of the regime; and
`(B) notification of applications for licenses to export goods and
technology that are destined for terrorist organizations or
individuals.
`(c) Standards for National Export Control Systems- It is the intent of
the Congress that the President take steps to attain the cooperation of
members of each multilateral export control regime in implementing effective
national export control systems in accordance with the following:
`(1) EXPORT CONTROL LAWS- Enforcement authority, civil and criminal
penalties, and statutes of limitations are sufficient to deter potential
violations and punish violators under the member's export control
laws.
`(2) LICENSE APPROVAL PROCESS- The system for evaluating export license
applications includes sufficient technical expertise to assess the licensing
status of exports and ensure the reliability of end users.
`(3) ENFORCEMENT- The enforcement mechanism provides authority for
trained enforcement officers to investigate and prevent illegal
exports.
`(4) DOCUMENTATION- There is a system of export control documentation
and verification with respect to controlled items.
`(5) INFORMATION- There are procedures for the coordination and exchange
of information concerning licensing, end users, and enforcement with other
members of the multilateral export control regime.
`(6) RESOURCES- The member has devoted adequate resources to administer
and enforce effectively the authorities, systems, mechanisms, and procedures
described in paragraphs (1) through (5).
`(d) Support of Other Countries' Export Control Systems- The Secretary is
encouraged to continue to--
`(1) participate in training of, and provide training to, officials of
other countries on the principles and procedures for implementing effective
export controls; and
`(2) participate in any such training provided by other departments and
agencies of the United States.
`(e) Annual Reports to Congress-
`(1) ON EACH MULTILATERAL EXPORT CONTROL REGIME- Not later than February
1 of each year, the President shall submit to the Committee on Banking,
Housing, and Urban Affairs of the Senate and the Committee on International
Relations of the House of Representatives a report evaluating--
`(A) the purpose and objectives of each multilateral export control
regime;
`(B) the effectiveness of each multilateral export control regime,
including an assessment of the steps undertaken pursuant to subsections
(c) and (d), in meeting those objectives;
`(C) any proposals or actions made by the United States to change the
regime's control list;
`(D) the response or position of the other regime members to any such
proposal or action made by the United States; and
`(E) the overall responsiveness of the regime to any such action or
proposal made by the United States.
`(2) CLASSIFICATION- The reports, or any part of the reports, under this
subsection may be submitted in classified form to the extent the President
considers necessary.'.
SEC. 7. ENFORCEMENT.
Section 12 of the Export Administration Act of 1979 (50 U.S.C. App. 2411)
is amended--
(A) by striking paragraphs (1), (2), (3), and (4) and inserting the
following:
`(a) General Authority- (1) To the extent necessary or appropriate to the
enforcement of this Act or to the imposition of any penalty, forfeiture, or
liability arising under this Act--
`(A) the head of any department or agency exercising any function under
this Act (and officers or employees of such department or agency
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 designated by the
Secretary of the Department of Homeland Security) and the Secretary (and
officers and employees of the Office of Export Enforcement of the Department
of Commerce specifically designated by the Secretary) may conduct
investigations outside of the United States;
`(C) the head of any such department or agency (and such officers or
employees) may obtain information from, require reports or the keeping of
records by, inspect the books, records, and other writings, premises, or
property of, and take the sworn testimony of, any person;
`(D)(i) such officers or employees may administer oaths or affirmations,
and may by subpoena 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 refusal 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
requiring 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 employees of the Department of
Commerce designated by the Secretary) may conduct, outside the United
States, pre-license investigations and post-shipment verifications of items
licensed for export.
`(2)(A) Subject to subparagraph (B), U.S. Immigration and Customs
Enforcement and U.S. Customs and Border Protection 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. Immigration and Customs
Enforcement and U.S. Customs and Border Protection are authorized by law
to conduct such activities.
`(B) An officer of U.S. Immigration and Customs Enforcement or U.S.
Customs and Border Protection may do the following in carrying out
enforcement authority under this Act:
`(i) Stop, search, and examine a vehicle, vessel, aircraft, or person
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) Search any package or container in which 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.
`(iii) Detain (after search) or seize and secure for trial any goods
or technology on or about such vehicle, vessel, aircraft, or person, or in
such package or container, 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.
`(iv) Make arrests without warrant for any violation of this Act
committed in his or her presence or view or if the officer has probable
cause to believe that the person to be arrested has committed or is
committing such a violation.
`(C) The arrest authority conferred by subparagraph (B)(iv) is in
addition to any arrest authority under other laws. U.S. Immigration and
Customs Enforcement and U.S. Customs and Border Protection may not detain
for more than 20 days any shipment of goods or technology eligible for
export without license application. In a case in which such detention is on
account of a disagreement 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 20-day period. At the end of
that 20-day period, U.S. Immigration and Customs Enforcement or U.S. Customs
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)(A) Subject to subparagraph (B)--
`(i) the Secretary shall have the responsibility for the enforcement
of section 8;
`(ii) in the enforcement of the other provisions of this Act, the
Secretary is authorized 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
Export Enforcement of the Department of Commerce, pursuant to agreements
or other arrangements with other countries, is authorized to perform
enforcement activities;
`(iii) the search, detention (after search), or seizure of goods or
technology at those ports and places specified in paragraph (2)(A) may be
conducted by officers or employees of the Department of Commerce
designated by the Secretary, with the concurrence of U.S. Customs and
Border Protection; and
`(iv) enforcement activities conducted outside the United States,
except for pre-license investigations and post-shipment verifications,
shall be undertaken in coordination with U.S. Immigration and Customs
Enforcement.
`(B) The Secretary may designate any employee of the Office of Export
Enforcement of the Department of Commerce to do the following in carrying
out the enforcement authority conferred by this Act:
`(i) Execute any warrant or other process issued by a court or officer
of competent jurisdiction.
`(ii) Make arrests without warrant for any offense against the United
States committed 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.
`(4) The authorities conferred by the Export Administration Renewal Act
of 2005 under paragraph (3) shall be exercised consistent with guidelines
approved by the Attorney General.';
(B) by striking paragraphs (6) and (7);
(C) by striking paragraph (8) and inserting the following:
`(6)(A) The Secretary, in consultation with the technical advisory
committees established under section 5(h) and exporters, shippers, trade
facilitators, freight forwarders, and reexporters representative of their
respective industries, shall continue to publish and update `best practices'
guidelines to help those industries develop and implement, on a voluntary
basis, effective export control programs in compliance with this Act.
`(B) The existence of an effective export compliance program and high
quality overall export compliance efforts is one factor which ordinarily
should be accorded great weight as a mitigating factor in civil penalty
enforcement actions under this Act.
`(7) For purposes of this section, a reference to the enforcement of
this Act or to a violation of this Act includes 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.';
(A) by striking `(c) Confidentiality' and all that follows through
paragraph (2) and inserting the following:
`(c) Confidentiality of Information-
`(1) EXEMPTIONS FROM DISCLOSURE-
`(A) INFORMATION OBTAINED ON OR BEFORE JUNE 30, 1980- Except as
otherwise provided by the third sentence of section 8(b)(2) and by section
11(c)(2)(C), information obtained under this Act, or any predecessor
statute, on or before June 30, 1980, which is deemed confidential,
including Shipper's Export Declarations, or with respect to which a
request for confidential treatment is made by the person furnishing such
information, shall not be subject to disclosure under section 552 of title
5, United States Code, and such information shall not be published or
disclosed, unless the Secretary determines that the withholding thereof is
contrary to the national interest.
`(B) INFORMATION OBTAINED AFTER JUNE 30, 1980- Except as otherwise
provided by the third sentence of section 8(b)(2) and by section
11(c)(2)(C), information obtained under this Act after June 30, 1980, or
under 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.), may be withheld from disclosure only to the extent
permitted by statute, except that information submitted or obtained in
connection with an application for an export license, other export
authorization (or recordkeeping or reporting requirement), enforcement
activity, or other operations under this Act, or under the Export
Administration Regulations as maintained and amended under the authority
of the International Emergency Economic Powers Act, including--
`(i) the export license or other export authorization
itself,
`(ii) classification requests described in section
10(l),
`(iii) information or evidence obtained in the course of any
investigation by an employee or officer of the Department of Commerce or
any other department or agency of the United States,
`(iv) information obtained or furnished under section 5 or 6 in
connection with any international agreement, treaty, or other
obligation, and
`(v) information obtained in any investigation of an alleged
violation of section 8, except for information required to be disclosed
by section 8(b)(2),
shall be withheld from public disclosure and shall not be subject to
disclosure under section 552 of title 5, United States Code, unless the
release of such information is determined by the Secretary to be in the
national interest.
`(2) INFORMATION TO THE CONGRESS AND THE GAO-
`(A) IN GENERAL- Nothing in this Act shall be construed as authorizing
the withholding of information from the Congress or from the Government
Accountability Office.
`(B) AVAILABILITY TO THE CONGRESS-
`(i) IN GENERAL- Any information obtained at any time under this Act
or under any predecessor Act, or under the Export Administration
Regulations as maintained and amended under the authority of the
International Emergency Economic Powers Act, regarding the control of
exports, including any report or license application required under this
Act, shall be made available to any committee or subcommittee of
Congress of appropriate jurisdiction upon the request of the chairman or
ranking minority member of such committee or subcommittee.
`(ii) PROHIBITION ON FURTHER DISCLOSURE- No committee, subcommittee,
or Member of Congress shall disclose any information obtained under this
Act, under any predecessor Act, or under the Export Administration
Regulations as maintained and amended under the authority of the
International Emergency Economic Powers Act, regarding the control of
exports that is submitted on a confidential basis to the Congress under
clause (i) unless the full committee to which the information is made
available determines that the withholding of that information is
contrary to the national interest.
`(C) AVAILABILITY TO GAO-
`(i) IN GENERAL- Notwithstanding subparagraph (B), information
described in paragraph (1) shall, consistent with the protection of
intelligence, counterintelligence, and law enforcement sources, methods,
and activities, as determined by the agency that originally obtained the
information, and consistent with the provisions of section 716 of title
31, United States Code, be made available only by that agency, upon
request, to the Comptroller General of the United States or to any
officer or employee of the Government Accountability Office authorized
by the Comptroller General to have access to such
information.
`(ii) PROHIBITION ON FURTHER DISCLOSURE- No officer or employee of
the Government Accountability Office shall disclose, except to the
Congress in accordance with this subsection, any such information which
is submitted on a confidential basis and from which any individual can
be identified.'; and
(i) by striking `(3) Any' and inserting `(3) INFORMATION SHARING-
Any';
(ii) by moving the text of paragraph (3) 2 ems to the right;
and
(iii) by striking `Commissioner of Customs' each place it appears
and inserting `Secretary of Homeland Security'; and
(3) by adding at the end the following new subsections:
`(1) IN GENERAL- Any tangible items lawfully seized under subsection (a)
by designated officers or employees shall be subject to forfeiture to the
United States.
`(2) APPLICABLE LAWS- Those provisions of law relating to--
`(A) the seizure, summary and judicial forfeiture, and condemnation of
property for violations of the customs laws,
`(B) the disposition of such property or the proceeds from the sale
thereof,
`(C) the remission or mitigation of such forfeitures, and
`(D) the compromise of claims,
shall apply to seizures and forfeitures incurred, or alleged to have
been incurred, under the provisions of this subsection, insofar as
applicable and not inconsistent with this Act.
`(3) FORFEITURES UNDER CUSTOMS LAWS- Duties that are imposed upon a
customs officer or any other person with respect to the seizure and
forfeiture of property under the customs laws may be performed with respect
to seizures and forfeitures of property under this subsection by the
Secretary or any officer or employee of the Department of Commerce that may
be authorized or designated for that purpose by the Secretary (or by the
Under Secretary for Border and Transportation Security of the Department of
Homeland Security (formerly the Commissioner of Customs) or any officer or
employee of the Directorate for Border and Transportation Security (formerly
the United States Customs Service) designated by the Under Secretary), or,
upon the request of the Secretary, by any other agency that has authority to
manage and dispose of seized property.
`(g) Undercover Investigation Operations-
`(1) USE OF FUNDS- With respect to any undercover investigative
operation conducted by the Office 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 enforcement under this Act may be
used to purchase property, buildings, and other facilities, and to lease
equipment, conveyances, and space within the United States, without regard
to sections 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
Administrative Services Act of 1949 (41 U.S.C. 254 (a), 254b, 254c, 254d,
and 255);
`(B) funds made available for export enforcement under this Act may be
used to establish or to acquire proprietary corporations or business
entities as part of an undercover operation, and to operate such
corporations or business entities on a commercial basis, without regard to
sections 1341, 3324, and 9102 of title 31, United States Code;
`(C) funds made available for export enforcement under this Act and
the proceeds from undercover operations may be deposited in banks or other
financial institutions without regard 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 operations may be used to offset
necessary and reasonable expenses incurred in such operations without
regard to the provisions of section 3302 of title 31, United States Code,
if the Secretary certifies, in writing, that the action authorized by
subparagraph (A), (B), (C), or (D) for which the funds would be used is
necessary for the conduct of the undercover operation.
`(2) DISPOSITION OF BUSINESS ENTITIES- If a corporation or business
entity established or acquired 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 report the circumstances to the Comptroller
General of the United States as much in advance of such disposition as the
Secretary determines is practicable. The proceeds of the liquidation, sale,
or other disposition, after obligations incurred by the corporation or
business enterprise are met, shall be deposited in the Treasury of the
United States as miscellaneous receipts. Any property or equipment purchased
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 disposed 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
Department 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 operation, the proceeds or the balance of the proceeds remaining at the
time shall be deposited into the Treasury of the United States as
miscellaneous receipts.
`(A) AUDIT- The Secretary shall conduct a detailed financial audit of
each closed undercover 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 results of the audit.
`(B) REPORT- The Secretary shall submit annually to Congress a report,
which may be included in the annual report under section 14, including the
following information:
`(i) The number of undercover investigative operations pending as of
the end of the period for which the report is submitted.
`(ii) The number of undercover investigative operations commenced in
the 1-year period preceding the period for which the report is
submitted.
`(iii) The number of undercover investigative 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.
`(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
proceedings (other than appeals) pursuant to the investigative operation
are concluded, or covert activities pursuant to such operation are
concluded, whichever occurs later; and
`(B) the terms `undercover investigative operation' and `undercover
operation' mean any undercover investigative operation conducted by the
Office of Export Enforcement of the Department of Commerce--
`(i) in which the gross receipts (excluding interest earned) exceed
$25,000, or expenditures (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 required by paragraph (4)(B).
`(h) Wiretaps- Interceptions of communications in accordance with section
2516 of title 18, United States Code, are authorized to further the
enforcement of this Act.
`(i) 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).
`(j) Export Enforcement Account-
`(1) ESTABLISHMENT- There is established in the general fund of the
Treasury a separate fund which shall be known as the `The BIS Export
Enforcement Fund'. Notwithstanding any other provision of this Act, there
shall be deposited as offsetting receipts into the BIS Export Enforcement
Fund amounts described in paragraph (2). Amounts in the BIS Export
Enforcement Fund shall remain available until expended.
`(2) AMOUNTS DESCRIBED- The amounts described in this paragraph are
civil penalties collected pursuant to regulations issued, maintained, or
amended under the Act, the International Emergency Economic Powers Act, and
any other statute pursuant to which the Bureau of Industry and Security of
the Department of Commerce has the authority to impose civil
penalties.
`(3) TRANSFERS TO OTHER ACCOUNTS- The Secretary of the Treasury shall
transfer from the BIS Export Enforcement Fund to the BIS Export Enforcement
Account amounts equal to the expenses incurred by the Secretary of Commerce
for activities that further the enforcement of the provisions of this Act.
Such activities include--
`(A) the investigative travel expenses of agents of the Office of
Export Enforcement of the Department of Commerce, including travel
expenses for training courses for such agents;
`(B) storage costs for detained and seized items related to
investigations of violations of this Act; and
`(C) the purchase, repair, and maintenance of equipment necessary for
the operations of the Office of Export Enforcement of the Department of
Commerce.
`(4) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be
appropriated from the BIS Export Enforcement Fund amounts not to exceed
$1,000,000 for each fiscal year to carry out the purposes set forth in this
subsection.
`(5) DEPOSITS INTO GENERAL FUND- At the end of each fiscal year, any
unobligated amount in excess of $1,000,000 remaining in the BIS Export
Enforcement Fund shall be deposited in the general fund of the
Treasury.'.
SEC. 8. ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW.
Section 13(a) of the Export Administration Act of 1979 (50 U.S.C. App.
2412(a)) is amended in the first sentence by inserting `or under 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.)'
after `under this Act'.
SEC. 9. ADMINISTRATIVE AND REGULATORY AUTHORITY.
Section 15(a) of the Export Administration Act of 1979 (50 U.S.C. App.
2414(a)) is amended in the first sentence--
(1) by striking `Under Secretary of Commerce for Export Administration'
and inserting `Under Secretary of Commerce for Industry and Security';
and
(2) by striking `such other statutes' and all that follows through the
end of the sentence and inserting `other statutes that the Secretary has
delegated to the Under Secretary of Commerce for Industry and Security or
any predecessor (including the Under Secretary of Commerce for Export
Administration and the Assistant Secretary of Commerce for Trade
Administration) as of the date of the enactment of the Export Administration
Renewal Act of 2005, or may delegate to the Under Secretary of Commerce for
Industry and Security from time to time.'.
SEC. 10. 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 the purposes of this Act such sums as may be necessary
for each fiscal year.'.
SEC. 11. TERMINATION DATE.
Section 20 of the Export Administration Act of 1979 (50 U.S.C. App. 2419)
is amended to read as follows:
`TERMINATION DATE
`SEC. 20. The authority granted by this Act terminates at the end of the
2-year period beginning on the date of the enactment of the Export
Administration Renewal Act of 2005, except that the authority granted by
section 12 of the Act shall not terminate.'.
SEC. 12. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Wiretapping- Section 2516(1) of title 18, United States Code, is
amended by adding at the end the following:
`(q) any violation of, or conspiracy to violate, the Export
Administration Act of 1979.'.
(b) Pay of Under Secretary- Section 5314 of title 5, United States Code,
is amended by striking `Under Secretary of Commerce for Export Administration'
and inserting `Under Secretary of Commerce for Industry and Security'.
(c) Amendments to Title 31, United States Code-
(1) Section 9703(a) of title 31, United States Code (as added by Public
Law 102-393), is amended by striking `or the United States Coast Guard' and
inserting `, the United States Coast Guard, or the Bureau of Industry and
Security of the Department of Commerce'.
(2) Section 9703(a)(2)(B)(i) of title 31, United States Code (as added
by Public Law 102-393), is amended--
(A) by striking `or' at the end of subclause (I);
(B) by inserting `or' at the end of subclause (II); and
(C) by adding at the end the following new subclause:
`(III) a violation of the Export Administration Act of 1979, or
any regulation, license, or order issued under that
Act;'.
(3) Section 9703(p)(1) of title 31, United States Code (as added by
Public Law 102-393) is amended by adding at the end the following: `In
addition, for purposes of this section, the Bureau of Industry and Security
of the Department of Commerce shall be considered to be a Department of the
Treasury law enforcement organization.'.
(d) Civil Forfeiture Proceedings- Section 983(i)(2) of title 18, United
States Code, is amended--
(1) by striking `or' at the end of subparagraph (D);
(2) by striking the period at the end of subparagraph (E) and inserting
`; or'; and
(3) by adding at the end the following new subparagraph:
`(F) the Export Administration Act of 1979.'.
(e) Clerical Amendment- Paragraph (3) of section 11A(k) of the Export
Administration Act of 1979 (50 U.S.C. App. 2410A(k)(3)) is amended--
(1) by redesignating that paragraph as paragraph (2); and
(2) by striking `paragraph (2)' and inserting `paragraph (1)'.
END