Order Code RL31398
Report for Congress
Received through the CRS Web
Export Administration Act of 2001:
Side-by-Side of S. 149 and H.R. 2581
April 30, 2002
-name redacted-
Analyst in International Trade and Finance
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜
The Library of Congress
The Export Administration Act of 2001:
Side-by-Side of S. 149 and H.R. 2581
Summary
This report compares the major provisions of the Export Administration Act of
2001 (EAA); S. 149 as passed by the Senate, H.R. 2581 as amended by the House
International Relations Committee, and H.R. 2581 as further amended by the House
Armed Services Committee. These bills reauthorize and revamp the primary
authority for controlling exports and technologies for reasons of foreign policy and
national security. The Export Administration Act of 2001 was introduced in the
Senate as S. 149 on January 23, 2001, by Senator Michael P. Enzi. The bill was
reported out by the Senate Banking, Housing, and Urban Affairs Committee on
March 22, 2001 by a vote of 19-1. After 3 days of debate, the Senate passed the
measure, incorporating three amendments, on September 6, 2001. One House
version of EAA (H.R. 2581), substantially similar to S. 149, was introduced by Rep.
Benjamin Gilman on July 20, 2001. It was approved by the House International
Relations Committee(HIRC) on August 1 by a vote of 26-7 with 35 amendments,
thus significantly altering the measure. In addition, the House Permanent Select
Committee on Intelligence and the House Armed Services Committee (HASC) have
held hearings on H.R. 2581. The HASC marked-up and reported out the legislation
with further amendments on March 6, 2002 by a vote of 44-6.
The Senate and the HASC versions of EAA contain seven titles; the HIRC
version contains eight. Title I vests the authority to license exports with the Secretary
of Commerce and provides for the establishment of the Commerce Control List. Title
II provides for controls based on national security purposes. It authorizes the
establishment of a National Security Control List. This title also authorizes the
decontrol of certain items due to foreign availability or items categorized as having
mass market status. Title III authorizes foreign policy based export controls,
including controls to deter international terrorism. Title IV provides a review
mechanism for disputed license applications. Title V authorizes U.S. participation in
multilateral export control regimes and details penalties for export control violations.
Title VI authorizes the establishment of an Under Secretary for Export
Administration to carry out functions of the Act. This title also protects the
confidentiality of license applications. Title VII in the HIRC version transfers
licensing authority over commercial communications satellites from the Department
of State to the Department of Commerce. Title VII of the Senate and HASC versions
(Title VIII in the HIRC version) mandates the submission of an annual report to
Congress and also contains several conforming amendments, including those
repealing provisions related to the control of high performance computers.
This report compares the three pieces of legislation by title, highlighting
significant differences. Section descriptors span all three columns and provide
background where necessary. Sections added in one version without comparable
provision in the other are summarized. In cases in which committee action amended
the wording of existing sections, the legislative language is directly cited.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Title I: General Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Title II: National Security Export Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Title III - Foreign Policy Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Title IV - Export License and Dispute Resolution Procedures . . . . . . . . . . . . . . 20
Title VI - Export Control Authority and Regulations . . . . . . . . . . . . . . . . . . . . . 24
Title VIII [ Title VII (AS)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
The Export Administration Act of 2001:
Side-by-Side of S. 149 and H.R. 2581
Introduction
This report compares the major provisions of the Export Administration Act of
2001; S. 149 as passed by the Senate, H.R. 2581 as amended by the House
International Relations Committee, and H.R. 2581 as further amended by the House
Armed Services Committee. Exports of sensitive dual-use goods and technology
(i.e. items with both civilian and military applications) have been regulated by the
Export Administration Act of 1979 (P.L. 96-72, 50 U.S.C. 2401
et seq). This Act first
expired in 1989, but periodically it has been extended by Congress. During several
periods when the Act has expired, the Export Administration Regulations have been
maintained by authority of the International Emergency Economic Powers Act
(IEEPA)(50 U.S.C. 1703(b)).
In the 107th Congress, S. 149, the Export Administration Act of 2001, to
reauthorize and rewrite the EAA was introduced on January 23, 2001, by Senator
Michael P. Enzi. The Senate Banking, Housing, and Urban Affairs Committee voted
19-1 to report S. 149 to the Senate on March 22, 2001. After 3 days of debate, the
Senate passed the measure, incorporating three amendments, on September 6, 2001.
One House version of EAA (H.R. 2581), substantially similar to S. 149, was
introduced by Rep. Benjamin Gilman on July 20, 2001. It was approved by the House
International Relations Committee(HIRC) on August 1 by a vote of 26-7 with 35
amendments, thus significantly altering the measure. In addition, the House
Permanent Select Committee on Intelligence and the House Armed Services
Committee (HASC) have held hearings on H.R. 2581. The HASC marked-up and
reported out the legislation with further amendments on March 6, 2002 by a vote of
44-6.
This report compares the three pieces of legislation and the similarities and
differences between them. It is arranged by title and section, which also serve as a
proxy for subject matter. The section descriptors span all three columns and provide
background where necessary. Sections added in one version without comparable
provision in the other are summarized. In cases in which committee action amended
the wording of existing sections, the legislative language is directly cited. For further
information concerning the issues surrounding the Export Administration Act, please
refer to the following reports: RL30169,
Export Administration Act Reauthorization,
and RL30689, Export Administration Act: Controversy and Prospects.
CRS-2
Title I: General Authorities
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Definitions - Deemed Exports
Does not refer to deemed exports
Sec. 2(9)(iii)- defines deemed exports to include “the release of an item to a foreign
national within or outside the United States.”
Definitions - Technology
Sec. 2(1)(ii)-defines technology to mean “specific information that is necessary for the
Sec. 2(1)(ii)- defines technology to mean
development, production, or use of an item, and takes the form of technical data or
“specific information, communicated by any
assistance.”
means tangible or intangible, that is
necessary for the design, development,
production, or use of an item, including
taking the form of technical data or
technical assistance.”
Sec. 101 Commerce Control List - This section authorizes the Secretary to establish a Commerce Control List of items subject to license
authorization for export.
Sec. 101(e) “The Secretary may prescribe
No comparable provision
such regulations as are necessary to carry
out the provision of this Act.” Sec. 101(e)
Sec. 103 Public Information - This section directs the Secretary to keep the public informed about changes to export control policy and
procedure. The House version adds national security or nonproliferation groups to the range of groups to be consulted.
Sec. 103(b) “The Secretary shall consult
Sec. 103(b) “The Secretary shall consult regularly with representatives of a broad spectrum
regularly with representatives of a broad
of enterprises, labor organizations, nonproliferation and national security experts and
spectrum of enterprises, labor organizations,
citizens interested in or affected by export controls in order to obtain their views on United
and citizens interested in or affected by
States export control policy and the foreign availability or mass-market status of controlled
export controls in order to obtain their views
items.”
on United States export control policy and
the foreign availability or mass-market
status of controlled items.”
Sec. 105 Export Control Advisory Committees. This section authorizes the Secretary to appoint export control advisory committees with
respect to any items or class of items controlled or subject to export controls. The House version directs the Secretary to seek the
participation of national security and non-proliferation experts on the advisory committees.
CRS-3
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Sec. 105(a) “The Secretary shall permit the
Sec. 105(a) “The Secretary shall permit the widest possible participation on the export
widest possible participation by the business
control advisory committees by nonproliferation and national security experts, and by the
community on the export control advisory
business community.”
committees.”
Title II: National Security Export Controls
Sec. 201(a) Authorizes the President to prohibit, to curtail, or to require a license for the export of any item for national security purposes.
Sec. 201 (a)(2) authorizes the Secretary to exercise these authorities, but the bills differ on the extent to which the Secretary must consult or
seek concurrence with other agencies in the exercise of his authority.
Sec. 201(a)(2) EXERCISE OF AUTHORITY- “The authority contained in this subsection
Sec. 201(a)(2) “EXERCISE OF
shall be exercised by the Secretary, in consultation with the Secretary of Defense, the
AUTHORITY- The authority contained in
intelligence agencies, and such other departments and agencies as the Secretary considers
this subsection shall be exercised by the
appropriate.”
Secretary, with the concurrence of the
Secretary of Defense and in consultation
with the Secretary of State, the intelligence
agencies, and the heads of such other
departments and agencies as the Secretary
considers appropriate.”
Sec. 201(b) Purposes of National Security Controls- This section enunciates the purpose of national security controls. The language differs
between the bills in purpose (1) and (3). The HASC version contains a different standard in determining the items that can be controlled
under national security controls and a more detailed version of the purpose of anti-terrorism controls.
Sec. 201(b)(1) “To restrict the export of
Sec. 201(b)(1) “To restrict the export of items that could contribute to the military potential
items that would contribute to the military
of countries so as to prove detrimental to the national security of the United States, its allies
potential of countries so as to prove
or countries sharing common strategic objectives with the United States.”
detrimental to the national security of the
United States, its allies or countries sharing
common strategic objectives with the United
States.”
Section 201(b)(3) “To deter acts of international terrorism”
Section 201(b)(3) “To restrict the export of
items that could contribute to acts of
international terrorism so as to prove
detrimental to the national security of the
United States, its allies, or countries sharing
common strategic objectives with the United
States.”
CRS-4
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Sec. 201(c) End Use and End User Controls. This section authorizes the imposition of controls of any item that could contribute to the
proliferation of weapons of mass destruction based on the end-use or end-user of that item. However, the House versions mandate a
presumption of denial for certain end-use or end-users.
(c) “END USE AND END USER
(c) “END USE AND END USER CONTROLS-
CONTROLS- Notwithstanding any other
(1) GENERAL AUTHORITY- (A) Notwithstanding any other provision of this Act,
provision of this title, controls may be
controls may be imposed, based on the end use or end user, on the export of any item, that
imposed, based on the end use or end user,
could contribute to the proliferation of weapons of mass destruction or the means to deliver
on the export of any item, that could
them.
contribute to the proliferation of weapons of
(B) The President shall seek to strengthen multilateral cooperation to identify more
mass destruction or the means to deliver
effectively end users of concern.
them.”
(C) The Secretary shall establish and maintain a database listing end users of concern and
develop a procedure by which exporters can utilize such database to screen prospective end
users.
(2) PRESUMPTION OF DENIAL OF CERTAIN LICENSES- Notwithstanding any other
provision of this Act, there shall be a presumption of denial for the export of an item if the
Secretary, with the concurrence of the Secretary of Defense and the Secretary of State,
determines that there is a significant risk that--
(A) the end user designated to receive such item is involved in a program or activity for the
design, development, manufacture, stockpiling, testing, or other acquisition of a weapon of
mass destruction or the means to deliver such a weapon and is in a country that is not an
adherent to a multilateral export control regime controlling such weapon or means of
delivery, unless the Secretary, with the concurrence of the Secretary of Defense and the
Secretary of State, and in consultation with the intelligence agencies and the head of any
other department or agency of the United States that the Secretary considers appropriate,
determines that such export would not make a material contribution to such program or
activity; or
(B) the export of such item would otherwise contribute to the military capabilities of a
country so as to undermine regional stability or otherwise prove detrimental to the national
security of the United States, a NATO ally, or major non-NATO ally.
(3) DEFINITION- For purposes of this subsection, an `adherent to a multilateral export
control regime' is--(A) a country that is a member of a multilateral export control regime;
(B) a country that, pursuant to an international understanding to which the United States is a
party, controls exports in accordance with relevant criteria and standards of a multilateral
export control regime; or
(C) a major non-NATO ally that, pursuant to its national legislation, controls exports in
accordance with such criteria and standards.”
CRS-5
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Sec. 201(d) Enhanced Control - This section authorizes the President to impose controls on an item that may be subject to decontrol under
Sec. 204 (Incorporated Parts and Components) or Sec 211 (Foreign Availability and Mass Market Determination). The House and Senate
versions employ a different threshold for determining whether an item could be controlled under this provision. The House version also
authorizes the President to add items to the NSCL and allows him to require a license for items controlled under this provision.
(d) “ENHANCED CONTROLS-
(d) “ENHANCED CONTROL-
IN GENERAL- Notwithstanding any other
(1) IN GENERAL- Notwithstanding any other provision of this title, the President may
provisions of this title, the President may
determine that applying the provisions of section 204 or 211 with respect to an item on the
determine that applying the provisions of
National Security Control List could constitute a threat to the national security of the United
section 204 or 211 with respect to an item
States and that such item requires enhanced control, including the requirement for a license
on the National Security Control List would
for such item. If the President determines that enhanced control should apply to such item,
constitute a significant threat to the national
the item may be excluded from the provisions of sections 204 or 211, or both, until such
security of the United States and that such
time as the President determines that enhanced control should no longer apply to such item.
item requires enhanced control. If the
(2) CONTROL OF ITEMS- Notwithstanding any other provision of this Act, the President
President determines that enhanced control
may identify items to be included on the National Security Control List, and any such item
should apply to such item, the item may be
shall be included on that list.
excluded from the provisions of section 204,
(3) NONDELEGATION- The President may not delegate the authority provided under
section 211, or both, until such time as the
paragraphs (1) and (2).
President shall determine that such enhanced
(4) REPORT TO CONGRESS- The President shall promptly report any determination
control should no longer apply to such item.
described in paragraph (1) or any items included on the National Security Control List under
The President may not delegate the authority
paragraph (2), along with the specific reasons for that determination or inclusion (as the case
provided for in this subsection.
may be), to the Committee on International Relations of the House of Representatives and
(2) REPORT TO CONGRESS- The
the Committee on Banking, Housing, and Urban Affairs of the Senate.”
President shall promptly report any
determination described in paragraph (1),
along with the specific reasons for the
determination, to the Committee on
Banking, Housing, and Urban Affairs of the
Senate and the Committee on International
Relations of the House of Representatives.”
CRS-6
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Presumption of Denial on Certain Licenses - The House versions of the legislation mandate that the export of certain items requiring a
license carry a presumption of denial .The House versions differ on the threshold for determining the threat of an item.
No Corresponding Provision
Sec. 201(e) Requires a presumption of
Sec. 201(e) Requires a presumption of
denial for the export of any item requiring a
denial for the export of any item requiring a
license on the NSCL if there is a significant
license on the NSCL if there is a significant
risk that -
risk that -
“(A) such item would contribute to the
“(A) such item could contribute to the
nuclear, chemical, or biological weapons
nuclear, chemical, or biological weapons
capabilities of such country, or the
capabilities of such country, or the
capabilities of such country to deliver such
capabilities of such country to deliver such
weapons;
weapons;
(B) such item would otherwise contribute to
(B) such item could otherwise contribute to
the military capabilities of such country so
the military capabilities of such country so
as to undermine regional stability or
as to undermine regional stability or
otherwise prove detrimental to the national
otherwise prove detrimental to the national
security of the United States, a NATO ally,
security of the United States, a NATO ally,
or major non-NATO ally;
or major non-NATO ally;
(C) such item would likely be used or
(C) such item could likely be used or
diverted to a use or destination not
diverted to a use or destination not
authorized by the license or U.S. policy;
authorized by the license or U.S. policy;
(D) the export of such item would otherwise
(D) the export of such item could otherwise
materially and adversely affect the national
materially and adversely affect the national
security interests of the United States.”
security interests of the United States.”
Sec. 202 National Security Control List - This section directs the Secretary to maintain a National Security Control List (NSCL) composed
of items controlled for national security purposes as a subset of the Commerce Control List. Section 202(3)(a) provides for identification of
items on the NSCL. The HASC version also provides statutory authority for the maintenance of the Militarily Critical Technologies List in
Sec. 202(a)(4)
CRS-7
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Sec. 202(a)(3) “ Identification of items for
Sec. 202(a)(3) “Identification of items for the NSCL shall be made by the Secretary, with
the NSCL shall be made by the Secretary,
the concurrence of the Secretary of Defense, the Secretary of State, and in consultation with
with the concurrence of the Secretary of
other departments or agencies that the Secretary considers appropriate.”
Defense, and in consultation with other
- NSCL includes all items controlled by the current Commerce Control List.
departments or agencies that the Secretary
- the Secretary shall review the NSCL on a continuing basis, and with the concurrence of the
considers appropriate.”
Secretary of Defense, and the Secretary of State, and in consultation with other departments
- NSCL includes all items controlled on the
or agencies that the Secretary considers appropriate, adjust the NSCL to add or remove
current Commerce Control List.
items from the list.
- the Secretary shall review the NSCL on a
continuing basis, and with the concurrence
of the Secretary of Defense, and in
consultation with other departments or
agencies that the Secretary considers
appropriate, adjust the NSCL to add or
remove items from the list.
No comparable provision
No comparable provision
Sec 202(a)(4) Militarily Critical
Technologies List (MCTL)-
(A) Established as part of the NSCL.
(B) composed of items that are, or could be,
“critical to the United States military
maintaining or advancing its qualitative
advantage and superiority relative to other
countries or potential adversaries.”
(C) Secretary of Defense vested with sole
authority to add or remove any item from
MCTL.
(D) Licensing of MCTL items must receive
expressed consent of the Secretary of
Defense, except if overruled by the
President in interagency dispute resolution
procedures.
(D)Secretary of Defense shall report yearly
to the Senate and House Armed Services
Committee on the MCTL.
CRS-8
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Sec. 203 Country Tiers - Directs the President to establish a country tiering system of at least 3 tiers and assign each country to an
appropriate tier for each controlled item or group of items; provides for consultation between the President, the Secretary, SecDef, SecState,
the intelligence community, and other agencies the President considers appropriate. The HASC version contains language prohibiting the
President from delegating authority to establish the country tier system.
No comparable provision
No comparable provision
Sec 203(a)(4) The President may not
delegate the authorities to establish the
country tier system.
Section 203(c) Assessments This section provides several risk factors for the President to consider in assigning each country to a tier. The
House versions modify two risk factors and add a third. All 11 are listed for context.
(1) “The present and potential relationship of the country with the United States.”
(2) “ The present and potential relationship of the country with countries friendly to the United States, and with countries hostile to the
United States.”
3) “The country’s capabilities regarding
3) “The country’s goals, capabilities, and intentions regarding chemical, biological, and
chemical, biological, and nuclear weapons
nuclear weapons and the country’s membership in or adherence to, and level of compliance
and the country’s membership in, and level
with, relevant multilateral export control regimes.”
of compliance with, relevant multilateral
4) “The country’s capabilities regarding missile systems and the country’s membership in or
export control regimes.”
adherence to, and level of compliance with, relevant multilateral export control regime”
4) “The country’s capabilities regarding
missile systems and the country’s
membership in, and level of compliance
with, relevant multilateral export control
regimes.”
(5) “Whether the country, if a NATO or major non-NATO ally with whom the United States has entered into a free trade agreement as of
January 1, 1986, controls exports in accordance with the criteria and standards of a multilateral export control regime as defined in section
2(14) pursuant to an international agreement to which the United States is a party.”
(6) “The country's other military capabilities and the potential threat posed by the country to the United States or its allies.”
(7) “The effectiveness of the country's export control system.”
(8) “The level of the country's cooperation with United States export control enforcement and other efforts.”
(9) “The risk of export diversion by the country to a higher tier country.”
(10) “The designation of the country as a country supporting international terrorism under section 310.”
(11) “The extent to which the country, pursuant to its laws, regulations, and practices,
controls items consistent with the criteria and standards or relevant multilateral export
control regimes.”
CRS-9
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
No comparable provision
Section 206 Congressional Review and
Report (a) directs the Secretary to inform
the appropriate committees (House Armed
Services and International Relations; Senate
Banking, Housing and Urban Affairs,
Armed Services and Foreign Relations) at
least 30 days before changing the status of
an item on the NSCL. (b) Upon request of
the chairman or ranking member of the
committees, directs the Secretary to provide
a clear description of the proposed change,
the reasons justifying the change, and the
national security assessment of the Secretary
of Defense. (c) This assessment, prepared in
consultation with the Secretary of State and
Director of Central Intelligence (DCI), shall
report on the impact of the proposed change
on U.S. national security, its armed forces
and intelligence community, and the
cumulative effects such decontrols could
have on U.S national security, and on the
military potential, proliferation activities,
and support for international terrorism by
countries that may receive the items due to
decontrol.
Sec. 211 Determination of Foreign Availability and Mass Market Status
Sec 211(a) Both versions of this section directs the Secretary to review the mass market and foreign availability status of any item on the
NSCL. The Senate and the HIRC version also allow the Secretary to make status determinations, however the HASC version removes the
ability of the Secretary sole authority to make such determinations.
CRS-10
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Sec. 211(a) “IN GENERAL- The Secretary shall--
Sec. 211(a) “IN GENERAL- The Secretary
(1) on a continuing basis,
shall--
(2) upon a request from the Office of Technology Evaluation, or
(1) on a continuing basis,
(3) upon receipt of a petition filed by an interested person, review and determine the foreign
(2) upon a request from the Office of
availability and the mass-market status of any item the export of which is controlled under
Technology Evaluation established pursuant
this title.”
to section 214, or
(3) upon receipt of a petition filed by an
interested person, review the foreign
availability and the mass-market status of
any item the export of which is controlled
under this title.”
Petitions and Consultations- The HASC version mandates that foreign availability and mass market determinations must be receive the
concurrence of the Secretary of State and the Secretary of Defense.
No Comparable Provision
Sec. 211(b)(2) “TIME FOR MAKING
DETERMINATION The Secretary, with the
concurrence of the Secretary of Defense and
the Secretary of State, shall, within 6 months
after receiving a petition described in
subsection (a)(3), determine in accordance
with subsection (c) whether the item that is
the subject of the petition has foreign
availability or mass-market status and shall
notify the petitioner of the determination.”
Sec. 211(d) Criteria for establishing mass-market and foreign availability status. These criteria define mass market and foreign availability
for each version of the bill. The HASC version generally adopts a more restrictive definition of mass market and foreign availability, in part,
by removing references to “substantially identical” or “directly competitive” items.
CRS-11
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Sec. 211(d)(1) “FOREIGN AVAILABILITY STATUS- The Secretary shall determine that
Sec. 211(d)(1) “FOREIGN
an item has foreign availability status under this subtitle, if the item (or a substantially
AVAILABILITY STATUS- An item has
identical or directly competitive item)--
foreign availability status under this subtitle
(A) is available to controlled countries from sources outside the United States, including
only if the item--
countries that participate with the United States in multilateral export controls;
(A) is available to controlled countries
without restriction from sources outside the
(B) can be acquired at a price that is not excessive when compared to the price at which a
United States, more than one of which are
controlled country could acquire such item from sources within the United States in the
countries that participate with the United
absence of export controls; and
States in multilateral export control regimes
(C) is available in sufficient quantity so that the requirement of a license or other
as members; and
authorization with respect to the export of such item is or would be ineffective.”
(B) is available in significant quantity and
comparable quality to the item produced in
the United States so that the requirement of
a license or other authorization with respect
to the export of the item is or would be
ineffective.”
(ii) EXCEPTION- An item is not directly
competitive with a controlled item if the
item is not of comparable quality to the
controlled item with respect to
characteristics that resulted in the export of
the item being controlled.”
CRS-12
S. 149
H.R. 2581
H.R. 2581
As passed by the Senate
House International Relations Committee
House Armed Services Committee
Sec 211(d)(2) “MASS - MARKET STATUS
Sec 211(d)(2) “MASS-MARKET STATUS-
An item has mass-market status under this
(A) IN GENERAL- In determining whether an item has mass-market status under this
subtitle only if the following criteria are
subtitle, the Secretary shall consider the following criteria with respect to the item (or a
met:
substantially identical or directly competitive item):
(A) The item is produced in a large volume
(i) The production and availability for sale in a large volume to multiple potential
and is available for sale to multiple potential
purchasers.
purchasers.
(ii) The widespread distribution through normal commercial channels, such as retail stores,
direct marketing catalogues, electronic commerce, and other channels.
(B) The item is widely distributed through
(iii) The conduciveness to shipment and delivery by generally accepted commercial means
normal commercial channels, such as retail
of transport.
stores, direct marketing catalogues,
(iv) The use for the item's normal intended purpose without substantial and specialized
electronic commerce, and other channels.
service provided by the manufacturer, distributor, or other third party.
(C) The item is conducive to shipment and
delivery by generally accepted commercial
(B) DETERMINATION BY SECRETARY- If the Secretary finds that the item (or a
means of transport.
substantially identical or directly competitive item) meets the criteria set forth in
subparagraph (A), the Secretary shall determine that the item has mass-market status.
(D) The item can be used for its normal
intended purpose without substantial and
(3) SPECIAL RULES- For purposes of this subtitle–
specialized service provided by the
(A) SUBSTANTIALLY IDENTICAL ITEM- The determination of whether an item in
manufacturer, distributor, or other third
relation to another item is a substantially identical item shall include a fair assessment of
party.
end-uses, the properties, nature, and quality of the item.
(B) DIRECTLY COMPETITIVE ITEM-
(i) IN GENERAL- The determination of whether an item in relation to another item is a
directly competitive item shall include a fair assessment of whether the item, although not
substantially identical in its intrinsic or inherent characteristics, is substantially equivalent
for commercial purposes and may be adapted for substantially the same uses.
(ii) EXCEPTION- An item is not directly competitive with a controlled item if the item is
not of comparable quality to the controlled item with respect to characteristics that resulted
in the export of the item being controlled.
Sec. 214 Office of Technology Evaluation. This section establishes the Office of Technology Evaluation in the Department of Commerce to
make foreign availability and mass market determinations, monitor worldwide technological developments and conduct assessment of U.S.
export control policy. Sec. 214(b)(5) is slightly different between the Senate and House versions. The House version removes “imports of
manufactured goods as an assessment to be conducted by the Office.
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Sec. 214(b)(5) “conduct[s] assessments of
Sec. 214(b)(5) “conduct[s] assessments of United States industrial sectors critical to the
United States industrial sectors critical to the
United States defense industrial base and how the sectors are affected by technological
United States defense industrial base and
developments, technology transfers, and foreign competition;”
how the sectors are affected by
technological developments, technology
transfers, and foreign competition, including
imports of manufactured goods.”
EXPORTS OF HIGH PERFORMANCE COMPUTING TECHNOLOGY - This section was added in the HASC version as an alternative to
the provisions in the Senate and HIRC language to repeal provisions the National Defense Authorization Act of 1998 related to high
performance computers (HPC).
No comparable provision
SEC. 221 “EXPORTS OF HIGH
PERFORMANCE COMPUTING
TECHNOLOGY.
(a) JOINT PROCESS- The Secretary, the
Secretary of State, the Secretary of Defense,
and the Secretary of Energy shall jointly
develop and implement a process that would
permit the United States to monitor
effectively the export of high performance
computing technology to countries of
proliferation concern. Such a process shall
include, at a minimum, the following:
(1) A definition of high performance
computing technology and any associated
performance metrics.
(2) The ability to assess the proposed export
of high performance computing technology
prior to its export and possibly require a
license for such export to end users or end
uses of concern.
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(3) The use of post-shipment verifications
and other procedures to monitor end uses
and end users in order to ensure that exports
of high performance computing technology
are not being used by countries of
proliferation concern in a manner
detrimental to the national security of the
United States.
(b) REPORT TO CONGRESS- The
President shall submit to the Congress, not
later than 180 days after the date of the
enactment of this Act, a report describing
the process developed under subsection (a).
(c) IMPLEMENTATION- The process
developed under subsection (a) shall first
become effective 60 days after the end of
the 180-day period described in subsection
(b).
(d) REPEAL OF CERTAIN EXPORT
CONTROLS- Subtitle B of title XII of
division A of the National Defense
Authorization Act for Fiscal Year 1998 (50
U.S.C. App. 2404 note) is repealed,
effective 60 days after the end of the 180-
day period described in subsection (b).
(e) INCLUSION OF ITEMS IN
DEFINITION- The definition of `high
performance computing technology' under
subsection (a)(1) shall include computer
hardware, software, technical data, and
source codes.
(f) END USE REVIEW-
(1) NOTIFICATION- Any United States
person that exports a computer with a dollar
value of over $250,000, or any equivalent
metric developed pursuant to subsection (a),
shall, not less than 10 days before the item is
exported, provide to the Secretary a 1-page
notification described in paragraph (2) with
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(2) CONTENT- A notification under
paragraph (1) with respect to a proposed
export shall include the following:
(A) A detailed description of the item to be
exported.
(B) Performance measures of the item to be
exported.
(C) The quantity and dollar value of the item
to be exported.
(D) The name, address, and telephone
number of the end user of the exported item.
(E) The end uses of the exported item.
(3) INTERAGENCY REVIEW- Within 24
hours after receiving a notification under
paragraph (1), the Secretary shall refer the
notification to the Director of Central
Intelligence (in this subsection referred to as
the `Director') and the Secretary of Defense.
The Director and the Secretary of Defense
shall review the notification to determine
whether the end user or any end use of the
item to be exported--
(A) could threaten the national security of
the United States;
(B) could contribute to the proliferation of
weapons of mass destruction or the means to
deliver them; or
(C) could assist foreign terrorist
organizations in performing acts of
international terrorism.”
(4) DETERMINATION- “Within 7 calendar
days after receiving a notification under
paragraph (3), the Director and the Secretary
of Defense shall inform the Secretary of any
determinations they made under paragraph
(3) with respect to the notification. If the
Director or the Secretary of Defense
determines that a proposed export meets any
of the criteria set forth in subparagraphs (A),
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5) REPORT- The Secretary, with the
concurrence of the Secretary of Defense and
the Director, shall report annually to the
Congress on the implementation of this
subsection. The report shall contain the
number and type of determinations made by
the Director and the Secretary of Defense
under paragraph (3).
(6) EFFECTIVE DATE- This subsection
shall take effect 90 days after the date of the
enactment of this Act.”
Sec. 301(b) Purposes of Foreign Policy Export Controls. The HIRC version added provisions related test articles for human subjects and
the export of banned or regulated goods as purposes of foreign policy export controls.
No comparable provision
Sec. 301(b)(4) “To control the export of test articles intended for clinical investigation
involving human subjects so as to foster public health and safety and to prevent injury to the
foreign policy of the United States as well as to the credibility of the United States as a
responsible trading partner.”
Sec. 301(b)(5) “To control the export of goods and substances which are banned, severely
restricted, highly regulated, or never regulated for use in the United States in order to foster
public health and safety and to prevent injury to the foreign policy of the United States as
well as to the credibility of the United States as a responsible trading partner.”
Sec. 301(d) Contract sanctity- Limits
Sec. 301(d) Contract sanctity- Limits contract sanctity provision to contracts or license
contract sanctity to commitments made or
authorizations entered before the earlier of notice in the Federal Register or report to
licenses authorized previous to the date in
Congress by the President to impose controls.
which the President reports to Congress the
President’s intention to impose controls.
Sec.304 Presidential Reporting Requirement. Before imposing foreign policy export controls, the President must report on the control to
HIRC and BHUA including an assessment of 8 factors. The eighth factor is worded slightly differently between the versions.
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Sec 304(b)(8) “a conclusion that the
Sec. 304 (b)(8) “whether the proposed export control outweighs any likely costs to United
probable achievement of the objectives of
States economic, foreign policy, humanitarian, or national security interests, including any
the proposed export controls outweighs any
potential harm to the United States agricultural and business firms and to the international
likely costs to U.S. economic, foreign
reputation of the United States as a reliable supplier of goods, services, or technology.”
policy, humanitarian, or national security
interests, including any potential harm to
United States agricultural and business firms
and to the international reputation of the
United States as a reliable supplier of goods,
services, or technology.”
Section 308 (c) - Termination of Controls
Sec 308(c) The termination of a foreign
Sec 308(c) The termination of a foreign policy based export control takes place effect 30
policy based export control takes place on
days after the President has consulted with the HIRC and SFRC on the foreign policy
the date of Federal Register notice.
implications of such termination.
Sec 309 Compliance with International Obligations- The House versions require the President to impose controls on certain items to adhere
to international obligations. The House version also removes Senate language citing the Presidential reporting requirement before the
imposition of control under Sec. 309.
“Notwithstanding any other provision of this
“Notwithstanding any other provision of this Act setting forth limitations on authority to
Act setting forth limitations on authority to
control exports, the President shall impose controls on exports to a particular country or
control exports and except as provided in
countries--
section 304, the President may impose
(1) of items listed on the control list of a multilateral export control regime; or
controls on exports to a particular country or
(2) in order to fulfill obligations or commitments of the United States under resolutions of
countries--
the United Nations and under treaties, or other international agreements and arrangements,
(1) of items listed on the control list of a
to which the United States is a party.”
multilateral export control regime, as
defined in section 2(14); or
(2) in order to fulfill obligations or
commitments of the United States under
resolutions of the United Nations and under
treaties, or other international agreements
and arrangements, to which the United
States is a party.”
Section 310 Designation of Countries Supporting International Terrorism- Requires licenses for exports to countries the governments of
which the Secretary of State has determined to have repeatedly provided support to international terrorism. The HASC version adds a
consultation requirement for the Secretary of Defense and Secretary of State.
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Sec. 310(a)(2) “Requires the Secretary of
State to consult with the Secretary of
Defense as to whether a proposed export
could make a significant contribution to the
military potential of the country and its
ability to support acts of international
terrorism.”
Section 311 Crime Control Instruments - Although the Senate and House versions of the legislation both require the licensing of exports of
crime control instruments, the two provisions contain numerous differences. Both exempt NATO and non-NATO allies from licensing
requirements, but the Senate version also allows the President to exempt other countries. The Senate version also gives the President the
authority to overrule a final determination by the Secretary. The House version contains a presumption of denial for licenses to countries
engaged in acts of torture, and contains a prohibition on export of certain items.
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(a) “IN GENERAL- In order to promote
(a) “IN GENERAL- Crime control and detection instruments and equipment shall not be
respect for fundamental human rights, crime
approved for export by the Secretary except pursuant to an individual export license.
control and detection instruments and
(b) IMPLEMENTATION- Notwithstanding any other provision of this Act--
equipment shall be approved for export by
(1) any determination by the Secretary of what goods or technology shall be included on
the Secretary only pursuant to an individual
the list established pursuant to this subsection as a result of the export restrictions imposed
export license. Notwithstanding any other
by this section shall be made with the concurrence of the Secretary of State; and
provision of this Act--
(2) any determination by the Secretary to approve or deny an export license application to
(1) any determination by the Secretary of
export crime control or detection instruments or equipment shall be made in concurrence
what goods or technology shall be included
with the recommendations of the Secretary of State submitted to the Secretary with respect
on the list established pursuant to this
to the application pursuant to section 401 of this Act.
subsection as a result of the export
(c) LIMITATION-
restrictions imposed by this section shall be
(1) IN GENERAL- Notwithstanding subsection (b), the Secretary shall not approve the
made with the concurrence of the Secretary
export to a country of crime control and detection instruments and equipment especially
of State, and (2) any determination by the
susceptible to abuse as implements of torture if the government of such country, or any
Secretary to approve or deny an export
group supported by or acting on behalf of such government, has repeatedly engaged in acts
license application to export crime control
of torture unless the Secretary, with the concurrence of the Secretary of State, determines
or detection instruments or equipment shall
that the end user of the instruments or equipment proposed for export has not been engaged
be made in concurrence with the
in acts of torture.
recommendations of the Secretary of State
(1) IN GENERAL- Notwithstanding subsection (b), the Secretary shall not approve the
submitted to the Secretary with respect to
export to a country of crime control and detection instruments and equipment especially
the application pursuant to section 401 of
susceptible to abuse as implements of torture if the government of such country, or any
this Act, except that, if the Secretary does
group supported by or acting on behalf of such government, has repeatedly engaged in acts
not agree with the Secretary of State with
of torture unless the Secretary, with the concurrence of the Secretary of State, determines
respect to any determination under
that the end user of the instruments or equipment proposed for export has not been engaged
paragraph (1) or (2), the matter shall be
in acts of torture.
referred to the President for resolution.
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“ (b) EXCEPTION- Except as herein
(2) “LIST- The Secretary shall establish and maintain a list of crime control and detection
provided, the provisions of this section shall
instruments and equipment especially susceptible to abuse as implements of torture for
not apply with respect to exports to
purposes of paragraph (1), and shall publish such list in the Federal Register.
countries that are members of the North
(d) EXCEPTION- Subsection (a) shall not apply to exports to countries that are NATO or
Atlantic Treaty Organization or to Japan,
are major non-NATO allies.
Australia, or New Zealand, or to such other
(e) PROHIBITION- Notwithstanding any other provision of this section, including
countries as the President shall designate
subsection (d), the export to any country of leg irons, saps, blackjacks, electroshock stun
consistent with the purposes of this section
belts, thumb cuffs, and items specially designed as implements of torture, as determined by
and section 502B of the Foreign Assistance
the Secretary, including components produced for incorporation into these items and the
Act of 1961 (22 U.S.C. 2304). The
technology used for the development or production of these items, shall be prohibited.
provisions of subsection (a) shall apply with
(f) DEFINITION- For purposes of this section, the term `acts of torture' means acts
respect to exports of any of the items
committed by a person acting under the color of law that are specifically intended to inflict
identified in subsection (c) designed solely
severe physical or mental pain or suffering (other than pain or suffering incidental to lawful
for signal, flare, or saluting use.
sanctions) upon another person within the custody or physical control of the person
“(c) REPORT- Notwithstanding the
performing the acts.”
provisions of section 602 or any other
confidentiality requirements, the Secretary
shall include in the annual report submitted
to Congress pursuant to section 701 a report
describing the aggregate number of licenses
approved during the preceding calendar year
for the export of any items listed in the
following paragraphs identified by country
and control list number:
(1) Serrated thumbcuffs, leg irons,
thumbscrews, and electro-shock stun belts.
(2) Leg cuffs, thumbcuffs, shackle boards,
restraint chairs, straitjackets, and plastic
handcuffs.
(3) Stun guns, shock batons, electric cattle
prods, immobilization guns and projectiles,
other than equipment used exclusively to
treat or tranquilize animals and arms
(4) Technology exclusively for the
development or production of electro-shock
devices.”
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“(5) Pepper gas weapons and saps.
(6) Any other item or technology the
Secretary determines is a specially designed
instrument of torture or is especially
susceptible to abuse as an instrument of
torture.”
No Comparable Provision
Sec. 312 Measures to Protect the Public Health. This provision requires a license for the
export of test articles or experimental drugs intended for clinical investigations on human
subjects. The section list criteria and information required for a license, required reports to
be furnished to Congress by the President, and countries exempted from this provision.
No Comparable Provision
Sec. 313 Promotion of Safe Environments. This provision authorizes the President to
prohibit the export of pesticides for human health or environment reasons. It also requires
the President to report to Congress on the scope of exports of chemicals and pesticides
banned or highly regulated by the United States or by international conventions. It also
requires the GAO to evaluate the current U.S. system of pesticide export regulations,
compare it with other OECD countries, and to suggest improvements.
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Title IV - Export License and Dispute Resolution Procedures
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Sec 401 Export License Procedures. This section outlines the export license application process. In the application review process, the
House versions allows for certain derogations from processing time periods. The House versions also alter certain procedures in the
classification process to allow for appeal of a decision of the Secretary of Commerce by the Secretary of State or Secretary of Defense.
Sec.401(g) “Exceptions from Required
Sec 401(g)(1) “Agreement of the Applicant; Complexity of Analyses, National Security
Time Periods. (1) Agreement of the
Impact -
Applicant - Delays upon which the
(A) Agreement of the Applicant - Delays upon which the Secretary and the applicant
Secretary and the applicant mutually agree.”
mutually agree.
(B) COMPLEXITY OF ANALYSIS- A reviewing department or agency requires more time
due to the complexity of the analysis, if the additional time is not more than 60 days.
(C) NATIONAL SECURITY IMPACT- A reviewing department or agency requires
additional time because of the potential impact on the national security or foreign policy
interests of the United States, if the additional time is not more than 60 days.
(8) INTELLIGENCE AGENCIES- Delays necessary to obtain information or assessments
from intelligence agencies.”
Sec 401(h) “Classification Requests
Sec 401(h)(1) “CLASSIFICATION REQUEST-
(1) In any case in which the Secretary
(A) NOTIFICATION OF OTHER AGENCIES- In any case in which the Secretary receives
receives a written request asking for the
a written request asking for the proper classification of an item on the Control List or the
proper classification of an item on the
applicability of licensing requirements under this title, the Secretary shall promptly notify
Control List or the applicability of licensing
the Secretary of Defense, the Secretary of State, and the head of any other department or
requirements under this title, the Secretary
agency of the United States that the Secretary considers appropriate, of the request.
shall promptly notify the Secretary of
(B) DETERMINATION; RESOLUTION OF DISPUTES- The Secretary shall make the
Defense and the head of any department or
determination regarding proper classification within 14 days after receiving the request and
agency the Secretary considers appropriate.
inform the person making the request of such determination. If an objection is raised by the
The Secretary shall, within 14 days after
Secretary of State or the Secretary of Defense regarding the Secretary's determination within
receiving the request, inform the person
that time period, the disagreement shall be resolved through the interagency resolution
making the request of the proper
process described in section 402, except that any such disagreement shall be resolved within
classification.”
60 days.”
Sec. 402 Interagency Dispute Resolution Process. The HASC version of the modifies the initial phase of the dispute resolution process to
require consensus of all agencies, and mandates denial of license applications that do not receive consensus. All three versions directs the
Secretary to establish further review and appeal procedures, yet each prescribes different criteria for undertaking that appeal.
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Sec (402)(b)(1) “INITIAL RESOLUTION- The Secretary shall establish, select the
Sec (402)(b)(1) “INITIAL RESOLUTION-
chairperson of, and determine procedures for an interagency committee to review initially
The Secretary shall establish, select the
all license applications described in subsection (a) with respect to which the Secretary and
chairperson of, and determine procedures
any of the referral departments and agencies are not in agreement. The chairperson shall
for an interagency committee to review
consider the positions of all the referral departments and agencies (which shall be included
initially all license applications described in
in the minutes described in subsection (c)(2)) and make a decision on the license
subsection (a) with respect to which the
application, including appropriate revisions or conditions thereto.”
Secretary and any of the referral
departments and agencies are not in
agreement. The committee shall consider the
positions of all the referral departments and
agencies (which shall be included in the
minutes described in subsection (c)(2)) and
make a decision on the license application,
including appropriate revisions or conditions
thereto, except that any decision of the
committee is not valid unless it is
unanimous. If such a unanimous decision is
not reached, the license at issue shall be
denied, unless the matter is appealed under
paragraph (3).”
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Sec 402(b)(3) - Further Resolution.
Sec 402(b)(3) “FURTHER RESOLUTION-
Sec 402(b)(3) “FURTHER RESOLUTION-
“(3) FURTHER RESOLUTION- The
The President shall establish additional
The President shall establish additional
President shall establish additional levels for
levels for review or appeal of any matter
levels for review or appeal of any matter
review or appeal of any matter that cannot
that cannot be resolved pursuant to the
that cannot be resolved pursuant to the
be resolved pursuant to the process
process described in paragraph (1). Each
process described in paragraph (1). Each
described in paragraph (1). Each such
such review shall ensure that matters are
such review shall–
review shall–
resolved or referred to the President not later
(A) provide for decision-making based on
(A)provide for decision-making based on
than 90 days after the completed license
the concurrence of the participating
the majority vote of the participating
application is referred by the Secretary.”
departments and agencies;
departments and agencies;
(B) provide that a department or agency that
(B) provide that a department or agency that
fails to take a timely position, citing the
fails to take a timely position, citing the
specific statutory and regulatory bases for a
specific statutory and regulatory bases for a
position, shall be deemed to have no
position, shall be deemed to have no
objection to the pending decision;
objection to the pending decision;
(C) provide that any decision of an
(C) provide that any decision of an
interagency committee established under
interagency committee established under
paragraph (1) or interagency dispute
paragraph (1) or interagency dispute
resolution process established under this
resolution process established under this
paragraph may be escalated to the next
paragraph may be escalated to the next
higher level of review at the request of an
higher level of review at the request of an
official appointed by the President, by and
official appointed by the President, by and
with the advice of the Senate, or an officer
with the advice of the Senate, or an officer
properly acting in such capacity, of a
properly acting in such capacity, of a
department or agency that participated in the
department or agency that participated in the
interagency committee or dispute resolution
interagency committee or dispute resolution
process that made the decision; and
process that made the decision;
(D) ensure that matters are resolved or
(D) ensure that matters are resolved or
referred to the President not later than 90
referred to the President not later than 90
days after the date the completed license
days after the date the completed license
application is referred by the Secretary.
application is referred by the Secretary.”
If concurrence of the participating
departments and agencies is not reached at a
level of review established under this
paragraph, the license at issue shall be
denied unless the matter is escalated to the
next higher level of review or the President
determines otherwise.”
Sec 506 Post-Shipment Verifications. The House versions expand the targets for post-shipment verifications and contains broader mandates
for denying licenses to end-users and to countries where post-shipment verifications have been refused.
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Sec 506(f) “POST-SHIPMENT
Sec 506(f) “POST-SHIPMENT VERIFICATION
VERIFICATION- The Secretary shall target
(1) FOR CERTAIN EXPORTS AND COUNTRIES- The Secretary shall target post-
post-shipment verifications to exports
shipment verifications--
involving the greatest risk to national
(A) to exports involving the greatest risk to national security; and
security.”
(B) to those countries identified by the Director of Central Intelligence in the most recent
report that was submitted to Congress under section 721 of the Intelligence Authorization
Act for Fiscal Year 1997 on the acquisition and supply by foreign countries of dual-use
items and other technology useful for the development or production of weapons of mass
destruction.
(2) CONDUCT OF VERIFICATIONS- The Secretary may, with the concurrence of the
Secretary of State--
(A) utilize embassy personnel to conduct post-shipment verifications; and
(B) establish guidelines and regulations allowing United States persons to conduct those
verifications.”
Sec 506(g) (3) “REFUSAL BY COUNTRY-
Sec 506(g)(3) “REFUSAL BY COUNTRY- (A) If a country with which the United States
If the country in which the end-user is
has entered into an agreement providing for post-shipment verifications repeatedly obstructs
located refuses to allow post-shipment
or otherwise denies the post-shipment verification of controlled items, the Secretary shall
verification of a controlled item, the
deny a license for the export of those items or any substantially identical or directly
Secretary may deny a license for the export
competitive items or class of items to all end users in that country until such post-shipment
of that item, any substantially identical or
verification is allowed.
directly competitive item or class of items,
(B) If the country in which an end user is located refuses to allow post-shipment verification
any item that the Secretary determines to be
of a controlled item, whether or not the United States has an agreement with that country
of equal or greater sensitivity than the
providing for post-shipment verifications, the Secretary may deny a license for the export of
controlled item, or any controlled item for
that item or any substantially identical or directly competitive item or class of items to all
which a determination has not been made
end users in that country until such post-shipment verification is allowed.”
pursuant to section 211 to all end-users in
(“repeatedly” is struck from the HASC version)
that country until such post-shipment
verification is allowed.”
Sec. 506(p) Expiration of the Act
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Sec 506 (p)(2) “LIMITATION- The
Sec 506 (p)(2) “TERMINATION- The authority granted by this Act shall terminate on
authority granted by this Act shall terminate
December 31, 2005.”
on September 30, 2004, unless the President
carries out the following duties:
(A) Provides to Congress a detailed report
on--
(i) the implementation and operation of this
Act; and
(ii) the operation of United States export
controls in general.
(B)(i) Provides to Congress legislative
reform proposals in connection with the
report described in subparagraph (A); or
(ii) certifies to Congress that no legislative
reforms are necessary in connection with
such report.”
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Title VI - Export Control Authority and Regulations
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Deemed Export Regulations
No Comparable Provision
“Sec 601(c)(3)(c) ISSUANCE OF REGULATIONS-
(3) REGULATIONS ON EXPORTS TO FOREIGN NATIONALS- The Secretary, with the
concurrence of the Secretary of State and the Secretary of Defense, shall issue regulations to
govern the release of technology to a foreign national within the United States and to
establish appropriate procedures and entities to ensure compliance with those regulations.”
Sec 602(2) Exemption from Disclosure
(2) INFORMATION OBTAINED AFTER JUNE 30, 1980- Except as otherwise provided by the third sentence of section 502(c)(2) and by
section 507(b)(2), information obtained under this Act, under the Export Administration Act of 1979 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. 1706), may be withheld from disclosure only to the extent permitted by statute, except that information submitted, obtained, or
considered in connection with an application for an export license or other export authorization (or recordkeeping or reporting
requirement), (enforcement activity, or other operations) under the Export Administration Act of 1979, under this Act, or under the Export
Administration regulations as maintained and amended under the authority of the International Emergency Economic Powers Act (50
U.S.C. 1706).
[House versions omit enforcement activity, or other operations.]
Sec 602 (d)(3) Civil Penalties
(3) CIVIL PENALTIES; ADMINISTRATIVE SANCTIONS- The Secretary may impose a civil penalty of not more than $5,000 for each
violation of paragraph (1), except that no civil penalty may be imposed on an officer or employee of the United States, or any department
or agency thereof, without the concurrence of the department or agency employing such officer or employee. Sections 503 (e), (g), (h), and
(i) and 507 (a), (b), and (c) shall apply to actions to impose civil penalties under this paragraph. At the request of the Secretary, a
department or agency employing an officer or employee found (determined) to have violated paragraph (1) shall deny that officer or
employee access to information exempt from disclosure under this section. Any officer or employee who commits a violation of paragraph
(1) may also be removed from office or employment by the employing agency.
House versions replace “found” with “determined.”
CRS-28
S.149
H.R. 2581
H.R. 2581
As Passed by the Senate
House International Relations Committee
House Armed Services Committee
Agricultural Commodities, Medicine, Medical Devices. This provision of the Senate bill precludes applicability of the Act on food,
agricultural commodities, medicines, and medical devices to remain consistent with the Trade Sanctions Reform and Export Enhancement
Act of 2000 (P.L. 106-387).
Sec. 603 Agricultural Commodities,
No Comparable Provision
Medicine, Medical Devices.
APPLICABILITY OF TRADE
SANCTIONS REFORM AND EXPORT
ENHANCEMENT ACT OF 2000- Nothing
in this Act authorizes the exercise of
authority contrary to the provisions of the
Trade Sanctions Reform and Export
Enhancement Act of 2000 (Public Law
106-387; 114 Stat. 1549, 549A-45)
applicable to exports of agricultural
commodities, medicine, or medical
devices.
b) TITLE II LIMITATION- Title II does
not authorize export controls on food.
(c) TITLE III LIMITATION- Except as set
forth in section 906 of the Trade Sanctions
Reform and Export Enhancement Act of
2000, title III does not authorize export
controls on agricultural commodities,
medicine, or medical devices unless the
procedures set forth in section 903 of such
Act are complied with.
(d) DEFINITION- In this section, the term
`food' has the same meaning as that term
has under section 201(f) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C.
321(f)).
CRS-29
Title VII - Exports of Satellites
S.149
H.R. 2581
H.R. 2581
As Passed by the Senate
House International Relations Committee
House Armed Services Committee
No Comparable Provision
Title VII- Export of Satellites - This
Deletes Title VII
provision would transfer jurisdiction for
licenses of commercial communications
satellites to the Commerce Department from
the State Department and details export
licensing procedures including, (a) referral
by the Secretary to SecDef and SecState and
other agencies, (b) required consultations
with the intelligence community, (c) time
periods for referrals, and an (d) interagency
dispute resolution process. Sec. 704
Provides that certain defense services or
technical assistance provided in connexion
with satellite launches from, or by nationals
of the PRC remain subject to State
Department jurisdiction.
Title VIII [Title VII (Senate- HASC)]
Sec 801 (701) Annual Report - This section describes reporting elements to be included in the Annual Report on the administration of the
Act. Reporting element (15) is different in the two versions.
(15) “a description of the assessment made
(15) “an analysis and risk assessment of dual-use United States-origin items useful for the
pursuant to section 214, including any
development or production of weapons of mass destruction acquired by countries identified
recommendations to ensure that the defense
by the Director of the Central Intelligence in the most recent report submitted to Congress
industrial base (including manufacturing) is
under section 721 of the Intelligence Authorization Act for Fiscal Year 1997.”
sufficient to protect national security.”
(refers to assessments made by the Office of
Technology Assessment.)
No comparable provision
Sec 802(702) This section provides that the Act does not alter or affect any provision of the
Arms Export Control Act (AECA) or authority delegated to the Secretary of State by the
President under the AECA.
No comparable provision
Sec 803(703) This section amends the North Korea Threat Reduction Act of 1999
(NKTRA) by requiring that any cooperative arrangement, license, or approval for the
transfer of nuclear material, facilities, components, or technology must be approved by a
joint resolution passed by both Houses of congress. Sec. 804(704) provides for expedited
procedures for this joint resolution.
CRS-30
S.149
H.R. 2581
H.R. 2581
As Passed by the Senate
House International Relations Committee
House Armed Services Committee
No comparable provision
Sec 805 (705) This section directs the Office of Foreign Assets Control, Department of the
Treasury, to implement the recommendations of the Judicial Review Commission on foreign
asset control to expand and enhance the transparency of its operations and decisionmaking
process including the publication of proposed regulations on sanctions and the provision of
interpretations and guidance to accompany such regulations.
No comparable provision
Sec 806 (706) Requires the mandatory automatic filing under the automated export system
(AES) of certain export license applications. Directs SecState to conclude an information
sharing arrangement with the U.S. Customs Services and the Census Bureau to coordinate
information collected by all three agencies. Provides for increased criminal penalties for
failure to file or delay in filing of export license applications, and provides for civil penalties
for failure to file or delay in filing. Provides for criminal and civil penalties for knowingly
failing to file or filing misleading or false export information on a Shipper’s Export
Declaration or through the AES.
Civil Aircraft Safety - The Senate version includes this provision that allows the export of items or technology to insure flight safety
requirement of commercial passenger aircraft.
Sec. 702(k) “CIVIL AIRCRAFT SAFETY-
No comparable provision
Notwithstanding any other provision of law,
the Secretary may authorize, on a case-by-
case basis, exports and reexports of civil
aircraft equipment and technology that are
necessary for compliance with flight safety
requirements for commercial passenger
aircraft. Flight safety requirements are
defined as airworthiness directives issued by
the Federal Aviation Administration (FAA)
or equipment manufacturers' maintenance
instructions or bulletins approved or
accepted by the FAA for the continued
airworthiness of the manufacturer’s
products.”
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