Export Administration Renewal Act of 2005 - Amends the Export Administration Act of 1979 to declare it U.S. policy to utilize the analytic product of the U.S. intelligence community for the consideration of any proposed license under the Act.
Requires the President to conduct a comprehensive review of the commodity classification process and the Export Control Classification Number (ECCN) system.
Places the Office of Foreign Availability under the direction of the Under Secretary of Commerce for Industry and Security (currently, the Under Secretary of Commerce for Export Administration).
Increases penalties for violations of the Act.
Sets forth a five-year statute of limitations for commencing a proceeding in which a civil penalty or other administrative sanction is sought under the Act.
Sets forth U.S. policy on multilateral export control regimes.
Modifies enforcement mechanisms under the Act. Subjects tangible items lawfully seized by U.S. designated officers or employees to forfeiture. Specifies the use of funds made available for undercover investigation operations by the Office of Export Enforcement.
Authorizes interception of communications (wiretaps).
Authorizes the Secretary of Commerce, without fiscal year limitations, to expend 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.
Establishes the BIS Export Enforcement Fund in the Treasury.
Exempts functions exercised under the Export Administration Regulations as maintained and amended under the authority of the International Emergency Economic Powers Act from administrative procedure and judicial review.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4572 Introduced in House (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:
``(a) Criminal Penalties.--
``(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.
``(2) Exception.--
``(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:
``(A) Existing 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--
(1) in subsection (a)--
(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.
``(iii) Carry firearms.
``(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.'';
(2) in subsection (c)--
(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
(B) in paragraph (3)--
(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:
``(f) Forfeiture.--
``(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.
``(4) Audit and report.--
``(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)''.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on International Relations.
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