[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2004 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 2004
To authorize the President to control the transfer of goods, services,
technology, and software to protect the national security, and to
promote the foreign policy, of the United States, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 26, 2011
Mr. Berman introduced the following bill; which was referred to the
Committee on Foreign Affairs, and in addition to the Committee on
Oversight and Government Reform, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To authorize the President to control the transfer of goods, services,
technology, and software to protect the national security, and to
promote the foreign policy, of the United States, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Technology
Security and Antiboycott Act''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--TECHNOLOGY SECURITY
Sec. 101. Short title.
Sec. 102. Statement of policy.
Sec. 103. Authority of the President.
Sec. 104. Additional authorities.
Sec. 105. Transfer Policy Committee.
Sec. 106. Control lists.
Sec. 107. Licensing.
Sec. 108. Compliance assistance.
Sec. 109. Penalties.
Sec. 110. Enforcement.
Sec. 111. Administrative procedure.
Sec. 112. Annual report to Congress.
Sec. 113. Repeal.
Sec. 114. Effect on other Acts.
Sec. 115. Transition provisions.
TITLE II--ANTIBOYCOTT PROVISIONS
Sec. 201. Short title.
Sec. 202. Policy.
Sec. 203. Enforcement.
TITLE III--SANCTIONS REGARDING MISSILE PROLIFERATION AND CHEMICAL AND
BIOLOGICAL WEAPONS PROLIFERATION
Sec. 301. Missile proliferation control violations.
Sec. 302. Chemical and biological weapons proliferation sanctions.
SEC. 2. DEFINITIONS.
In this Act:
(1) Controlled.--Items are ``controlled'' if the transfer
of the items is controlled under title I.
(2) Critical infrastructure.--The term ``critical
infrastructure''--
(A) means systems and assets, whether physical or
virtual, so vital to the United States that the
incapacity or destruction of such systems and assets
would have a debilitating impact on national security,
national economic security, national public health or
safety, or any combination of thereof;
(B) may be publicly or privately owned; and
(C) includes gas and oil production, storage, or
delivery systems, water supply systems,
telecommunications networks, electrical power
generation or delivery systems, financing and banking
systems, emergency services (including medical, police,
fire, and rescue services), transportation systems and
services (including highways, mass transit, airlines,
and airports), and food and agriculture delivery
systems.
(3) Domestic defense industrial base.--The term ``domestic
defense industrial base'' has the meaning given that term in
section 702 of the Defense Production Act of 1950 (50 U.S.C.
App. 2152).
(4) Dual-use.--The term ``dual-use'' means capable of being
applied for both civilian uses and uses that threaten the
national security and foreign policy of the United States
through military action, terrorist attack, or cyber attack.
(5) Export administration regulations.--The term ``Export
Administration Regulations'' means the Export Administration
Regulations as promulgated, maintained, and amended under the
authority of the International Emergency Economic Powers Act
and codified, as of the date of the enactment of this Act, in
subchapter C of chapter VII of title 15, Code of Federal
Regulations.
(6) Foreign person.--The term ``foreign person'' means a
person other than a United States person.
(7) Good.--The term ``good'' means any article, natural or
manmade substance, material, supply, or manufactured product.
(8) Item.--The term ``item'' means any goods, technology,
software, and services.
(9) Person.--The term ``person'' includes the singular and
the plural and any individual, partnership, corporation, or
other form of association, including any government or agency
thereof.
(10) Technology.--The term ``technology'' means the
information and knowhow (whether in tangible form, such as
models, prototypes, drawings, sketches, diagrams, blueprints,
or manuals, or in intangible form, such as training or
technical services) that can be used to design, produce,
manufacture, utilize, or reconstruct goods, including computer
software and technical data.
(11) Transfer.--The term ``transfer'' includes--
(A) an export of an item from the United States or
a transshipment of an item through the United States,
the provision of services from the United States, and
the transmission of technology from the United States;
(B) the transfer of an item to a person within the
United States with the knowledge or intent that the
item will be exported or transmitted from the United
States to an unauthorized recipient under this title;
and
(C) a reexport of an item of United States origin,
whether or not by a person subject to the jurisdiction
of the United States.
(12) United states.--The term ``United States''--
(A) means the several States, the District of
Columbia, and any commonwealth, territory, or
possession of the United States; and
(B) includes the outer Continental Shelf, as
defined in section 2(a) of the Outer Continental Shelf
Lands Act (43 U.S.C. 1331(a)).
(13) United states person.--The term ``United States
person'' means--
(A) any individual who is a United States citizen
or an alien lawfully admitted for permanent residence
to the United States;
(B) any business or other entity operating in the
United States or organized under the laws of the United
States; and
(C) any business or other entity that is organized
under the laws of a foreign country but is controlled
in fact by a business or entity described in
subparagraph (B), as determined under regulations of
the President.
(14) Weapons of mass destruction.--The term ``weapons of
mass destruction'' has the means nuclear, radiological,
chemical, and biological weapons and delivery systems for such
weapons.
TITLE I--TECHNOLOGY SECURITY
SEC. 101. SHORT TITLE.
This title may be cited as the ``Technology Security Act''.
SEC. 102. STATEMENT OF POLICY.
The following is the policy of the United States:
(1) The national security and foreign policy of the United
States require that the transfer of items be controlled for the
following purposes:
(A) To prevent the access to such items for use
in--
(i) the proliferation of weapons of mass
destruction or of advanced conventional
weapons;
(ii) the acquisition of destabilizing
numbers or types of conventional weapons;
(iii) acts of terrorism;
(iv) military programs that could pose a
threat to the security of the United States or
its allies; or
(v) activities undertaken specifically to
cause significant interference with or
disruption of critical infrastructure.
(B) To preserve the qualitative military
superiority of the United States.
(C) To maintain the ability of the United States to
collect information and intelligence in order to
protect the national security of the United States.
(D) To sustain the domestic defense industrial
base.
(E) To protect the supply in the United States of
critical raw materials and manufactured items.
(F) To carry out the foreign policy of the United
States, including the protection of human rights and
the promotion of democracy.
(G) To carry out obligations and commitments under
international agreements and arrangements, including
multilateral export control regimes.
(2) The national security of the United States requires
that the United States maintain its leadership in the science,
technology, and manufacturing sectors. Such leadership requires
that United States persons are competitive in global markets.
The impact of the implementation of this title on such
leadership and competitiveness must be evaluated on an ongoing
basis and applied in imposing controls under sections 103 and
104 to avoid negatively affecting such leadership.
(3) The national security and foreign policy of the United
States require that the United States participate in
multilateral organizations and agreements regarding export
controls on items that are consistent with the policy of the
United States, and take all the necessary steps to secure the
adoption and enforcement, by the governments of other
countries, of export controls on items that are consistent with
such policy.
(4) The authority under this title may be exercised only in
furtherance of all the objectives set forth in paragraphs (1),
(2), and (3).
SEC. 103. AUTHORITY OF THE PRESIDENT.
(a) Authority.--
(1) In general.--In order to carry out the policy set forth
in paragraphs (1), (2), and (3) of section 102, the President
shall control the transfer of items by United States persons,
wherever located, and by foreign persons who are subject to the
jurisdiction of the United States.
(2) Powers.--In carrying out paragraph (1), the President
may investigate, regulate, direct and compel, nullify, void,
prevent, or prohibit any acquisition, holding, withholding,
use, transfer, withdrawal, transportation, exportation,
reexportation of, or dealing in, or exercising any right,
power, or privilege with respect to, or transactions involving,
items in which any foreign country or a national thereof has
any interest by any person, or with respect to any property,
subject to the jurisdiction of the United States.
(b) Requirements.--In exercising authority under this title, the
President shall impose controls to achieve the following objectives:
(1) To prevent the transfer of items subject to the
controls that would pose a risk to the national security or
foreign policy of the United States in any manner described
under section 102(1)(A).
(2) To secure the cooperation of other governments and
multilateral organizations to impose control systems that are
consistent, to the extent possible, with the controls imposed
under subsection (a).
(3) To maintain the leadership of the United States in
science, engineering, technology research and development, and
manufacturing.
(4) To sustain the viability of commercial firms, academic
institutions, and research establishments, and maintain the
skilled workforce of such firms, institutions, and
establishments, that are necessary to preserving the leadership
of the United States described in paragraph (3).
(5) To sustain the domestic defense industrial base, both
with respect to current and future defense requirements.
(6) To enforce the controls through regulations,
requirements for compliance, lists of controlled items, lists
of foreign persons who threaten the national security or
foreign policy of the United States, and guidance in a form
that facilitates compliance by United States persons, in
particular academic institutions, scientific and research
establishments, and small- and medium-sized businesses.
SEC. 104. ADDITIONAL AUTHORITIES.
(a) In General.--In carrying out this title, the President shall--
(1) establish and maintain lists of items that are subject
to controls under this title by reason of the dual-use
technology, capability, performance, or characteristics of the
items and that are controlled under section 103(a);
(2) establish and maintain lists of foreign persons and
end-uses that are determined to be a threat to the national
security and foreign policy of the United States pursuant to
the policy set forth in section 102(1)(A) and to whom transfers
of items are controlled;
(3) prohibit unauthorized transfers of controlled items;
(4) prohibit transfers of any controlled items to any
foreign person or end-use listed under paragraph (2);
(5) require licenses for transfers of controlled items,
including imposing conditions or restrictions on United States
persons and foreign persons with respect to such licenses;
(6) require measures for compliance;
(7) require and obtain such information from United States
persons and foreign persons as is necessary to carry out this
title;
(8) require advance notice before an item is transferred,
as an alternative to requiring a license;
(9) require, to the extent feasible, identification of
items subject to controls under this title in order to
facilitate the enforcement of such controls;
(10) inspect, search, detain, or seize outgoing items, in
any form, that are subject to controls under this title, or
conveyances on which it is believed that there are items that
have been, are being, or are about to be exported in violation
of this title;
(11) monitor shipments, or other means of transfer;
(12) keep the public fully apprised of changes in policy,
regulations, and procedures established under this title;
(13) appoint technical advisory committees in accordance
with the Federal Advisory Committee Act; and
(14) undertake any other action as is necessary to carry
out this title and is not otherwise prohibited by law.
(b) Relationship to IEEPA.--The authority under this title may not
be used to regulate or prohibit under this title the transfer of any
item that may not be regulated or prohibited under paragraph (1), (2),
or (4) of section 203(b) of the International Emergency Economic Powers
Act (50 U.S.C. 1702(b) (1), (2), and (4)).
(c) Countries Supporting International Terrorism.--
(1) License requirement.--A license shall be required for
the transfer of items to a country if the President has made
the following determinations:
(A) The government of such country has repeatedly
provided support for acts of international terrorism.
(B) The transfer of such items could make a
significant contribution to the military potential of
such country, including its military logistics
capability, or could enhance the ability of such
country to support acts of international terrorism.
(2) Notification to congress.--The President shall notify
the Committee on Foreign Affairs of the House of
Representatives and the Committee on Banking, Housing, and
Urban Affairs and the Committee on Foreign Relations of the
Senate at least 30 days before issuing any license required by
paragraph (1).
(3) Publication in federal register.--Each determination of
the President under paragraph (1)(A) shall be published in the
Federal Register.
(4) Rescission of determination.--A determination of the
President under paragraph (1)(A) may not be rescinded unless
the President submits to the Speaker of the House of
Representatives and the chairman of the Committee on Banking,
Housing, and Urban Affairs and the chairman of the Committee on
Foreign Relations of the Senate--
(A) before the proposed rescission would take
effect, a report certifying that--
(i) there has been a fundamental change in
the leadership and policies of the government
of the country concerned;
(ii) that government is not supporting acts
of international terrorism; and
(iii) that government has provided
assurances that it will not support acts of
international terrorism in the future; or
(B) at least 45 days before the proposed rescission
would take effect, a report justifying the rescission
and certifying that--
(i) the government concerned has not
provided any support for international
terrorism during the preceding 6-month period;
and
(ii) the government concerned has provided
assurances that it will not support acts of
international terrorism in the future.
(5) Use of territory as sanctuary for terrorists.--
(A) In general.--As used in paragraph (1), the term
``repeatedly provided support for acts of international
terrorism'' shall include the recurring use of any part
of the territory of the country as a sanctuary for
terrorists or terrorist organizations.
(B) Definitions.--In this paragraph--
(i) the term ``territory of a country''
means the land, waters, and airspace of the
country; and
(ii) the term ``sanctuary'' means an area
in the territory of a country--
(I) that is used by a terrorist or
terrorist organization--
(aa) to carry out terrorist
activities, including training,
financing, and recruitment; or
(bb) as a transit point;
and
(II) the government of which
expressly consents to, or with
knowledge, allows, tolerates, or
disregards such use of its territory.
(6) Contents of notification of license.--The President
shall include in the notification required by paragraph (2)--
(A) a detailed description of the items to be
offered, including a brief description of the
capabilities of any article for which a license to
transfer the items is sought;
(B) the reasons why the foreign country or
international organization to which the transfer is
proposed to be made needs the items that are the
subject of such transfer, and a description of the
manner in which such country or organization intends to
use such items;
(C) the reasons why the proposed transfer is in the
national interest of the United States;
(D) an analysis of the impact of the proposed
transfer on the military capabilities of the foreign
country or international organization to which such
transfer would be made;
(E) an analysis of the manner in which the proposed
transfer would affect the relative military strengths
of countries in the region to which the items that are
the subject of such transfer would be delivered and
whether other countries in the region have comparable
kinds and amounts of items; and
(F) an analysis of the impact of the proposed
transfer on the relations of the United States with the
countries in the region to which the items that are the
subject of such transfer would be delivered.
SEC. 105. TRANSFER POLICY COMMITTEE.
(a) Establishment.--The President may establish a Transfer Policy
Committee (in this section referred to as the ``Committee''), composed
of senior officials of Federal departments, agencies, and offices to
which the President delegates authority under this title, as the
President considers appropriate, to carry out the purposes set forth in
subsection (b).
(b) Purposes.--
(1) In general.--The purposes of the Committee are--
(A) to advise the President with respect to--
(i) identifying specific threats to the
national security and foreign policy that the
authority of this title may be used to address;
and
(ii) exercising the authority under this
title to implement policies, regulations,
procedures, and actions that are necessary to
effectively counteract those threats;
(B) pursuant to a delegation of authority by the
President, to review and approve--
(i) criteria for including items on, and
removing such an item from, a list of
controlled items, and information established
under this title;
(ii) an interagency procedure for compiling
and amending any list described in clause (i);
(iii) criteria for including a person on a
list of persons to whom transfers of items are
prohibited or restricted under this title;
(iv) standards for compliance by persons
subject to this title; and
(v) policies and procedures for monitoring
transfers of items controlled under this title;
(C) to receive information and advice from any
United States Government official regarding any matter
with respect to which the Committee has
responsibilities; and
(D) to obtain an independent evaluation on a
periodic basis of the effectiveness of the
implementation of this title in carrying out the policy
set forth in section 102.
(2) Authority to seek information.--The Committee may, in
carrying out its functions, seek information and advice from
experts who are not officers or employees of the Federal
Government.
(3) Transmittal and implementation of evaluations.--The
results of the independent evaluations conducted pursuant to
paragraph (1)(D) shall be transmitted to the President and the
Congress, in classified form if necessary. Subject to the
delegation of authority by the President, the Committee shall
determine, direct, and ensure that improvements recommended in
the evaluations are implemented.
SEC. 106. CONTROL LISTS.
The President shall, through the Technology Transfer Policy
Committee, to the maximum extent possible, ensure that--
(1) a process is established for regular review of each
list established under section 104(a)(1) and that such lists
are updated periodically to ensure that new items are
adequately controlled, and that the level of control of items
on the lists are adjusted as conditions change;
(2) information and expertise is obtained from persons from
relevant Federal departments, agencies, and offices and persons
outside the Government who have technical expertise, with
respect to the characteristics of the items considered for each
list established under section 104(a)(1) and the effect of
controlling the items on addressing the policy set forth in
section 102;
(3) the control lists established under section 104(a)(1)
identify each entry that has been included by virtue of the
participation of the United States in a multilateral regime,
organization, or group the purpose of which is consistent with
and supports the policy of the United States under this title
relating to the control of transfers of items; and
(4) each such list is published in a form that facilitates
compliance with it, in particular by small and medium-sized
businesses and academic institutions.
SEC. 107. LICENSING.
The President shall, through the Technology Transfer Policy
Committee, establish a procedure for licensing the transfer of items
controlled under this title in order to carry out the policy set forth
in section 102 and the requirements set forth in section 103(b). The
procedure shall, to the maximum extent possible, ensure that--
(1) license applications are considered and decisions made
with the participation of departments, agencies, and offices
that have delegated functions under this title; and
(2) licensing decisions are made in an expeditious manner,
with transparency to applicants on the status of license
processing and the reason for denying any license.
SEC. 108. COMPLIANCE ASSISTANCE.
(a) System for Seeking Assistance.--The President may establish a
system to provide United States persons with assistance in complying
with this title, which may include a mechanism for providing
information, in classified form as appropriate, on foreign persons who
are potential customers, suppliers, or business partners with respect
to items controlled under this title, in order to further ensure the
prevention of the transfer of items that may pose a threat to the
national security or foreign policy of the United States.
(b) Security Clearances.--In order to carry out subsection (a), the
President may issue appropriate security clearances to persons
described in paragraph (1) who are responsible for complying with this
title.
SEC. 109. PENALTIES.
(a) Unlawful Acts.--It shall be unlawful for a person to violate,
attempt to violate, conspire to violate, or cause a violation of this
title or of any regulation, order, or license issued under this title.
(b) Criminal Penalty.--A person who commits, attempts to commit, or
conspires to commit, or aids or abets in the commission of, an unlawful
act described in subsection (a), with knowledge or intent that the
items that are the subject of the violation would be transferred to a
person who is not authorized under this title to receive the items, or
would be applied for a use described in section 102(1)(A), shall, upon
conviction, be fined not more than $1,000,000, or, if a natural person,
be imprisoned for not more than 20 years, or both.
(c) Civil Penalties.--
(1) Authority.--The President may impose the following
civil penalties on a person for each violation by that person
of this title or any regulation, order, or license issued under
this title, for each violation:
(A) A fine of not more than $250,000 or an amount
that is twice the amount of the transaction that is the
basis of the violation with respect to which the
penalty is imposed, whichever is greater.
(B) Revocation of a license issued under this title
to the person.
(C) A prohibition on the person's ability to
transfer outside the United States any items, whether
or not subject to controls under this title.
(2) Procedures.--Any civil penalty under this subsection
may be imposed only after notice and opportunity for an agency
hearing on the record in accordance with sections 554 through
557 of title 5, United States Code, and shall be subject to
judicial review in accordance with chapter 7 of such title.
(3) Standards for levels of civil penalty.--The President
may by regulation provide standards for establishing levels of
civil penalty under this subsection based upon the seriousness
of the violation, the culpability of the violator, and the
violator's record of cooperation with the Government in
disclosing the violation.
(d) Criminal Forfeiture of Property Interest and Proceeds.--
(1) Forfeiture.--Any person who is convicted under
subsection (b) of a violation of a control imposed under
section 103 (or any regulation, order, or license issued with
respect to such control) shall, in addition to any other
penalty, forfeit to the United States--
(A) any of that person's interest in,
security of, 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 interest in,
security of, claim against, or property or
contractual rights of any kind in tangible
property that was used in 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 section 1963 of
title 18, United States Code.
(e) Prior Convictions.--
(1) License bar.--
(A) In general.--The President may--
(i) deny the eligibility of any person
convicted of a criminal violation described in
subparagraph (B) to transfer outside the United
States any item, whether or not subject to
controls under this title, for a period of up
to 10 years beginning on the date of the
conviction; and
(ii) revoke any license to transfer items
that was issued under this title and in which
such person has an interest at the time of the
conviction.
(B) Violations.--The violations referred to in
subparagraph (A) are any criminal violation of--
(i) this title (or any regulation, license,
or order issued under this title);
(ii) any regulation, license, or order
issued under the International Emergency
Economic Powers Act;
(iii) section 793, 794, or 798 of title 18,
United States Code;
(iv) section 4(b) of the Internal Security
Act of 1950 (50 U.S.C. 783(b)); or
(v) section 38 of the Arms Export Control
Act (22 U.S.C. 2778).
(2) Application to other parties.--The President may
exercise the authority under paragraph (1) with respect to any
person related, through affiliation, ownership, control, or
position of responsibility, to any person convicted of any
violation of law set forth in paragraph (1), upon a showing of
such relationship with the convicted party, and subject to the
procedures set forth in subsection (c)(2).
(f) Other Authorities.--Nothing in subsection (c), (d), or (e)
limits--
(1) the availability of other administrative or judicial
remedies with respect to violations of this title, or any
regulation, order, or license issued under this title;
(2) the authority to compromise and settle administrative
proceedings brought with respect to violations of this title,
or any regulation, order, or license issued under this title;
or
(3) the authority to compromise, remit or mitigate seizures
and forfeitures pursuant to section 1(b) of title VI of the Act
of June 15, 1917 (22 U.S.C. 401(b)).
SEC. 110. ENFORCEMENT.
(a) Authorities.--In order to enforce this title, the President
may--
(1) issue regulations, orders, and guidelines;
(2) require, inspect, and obtain books, records, and any
other information from any person subject to the provisions of
this title;
(3) administer oaths or affirmations and by subpoena
require any person to appear and testify or to appear and
produce books, records, and other writings, or both;
(4) conduct investigations (including undercover) in the
United States and in other countries, including intercepting
any wire, oral, and electronic communications, conducting
electronic surveillance, using pen registers and trap and trace
devices, and carrying out acquisitions, to the extent
authorized under chapters 119, 121, and 206 of title 18, United
States Code, and other applicable laws of the United States;
(5) inspect, search, detain, or seize items, in any form,
that are subject to controls under this title, or conveyances
on which it is believed that there are items that have been,
are being, or are about to be exported in violation of this
title;
(6) conduct prelicense inspections and post-shipment
verifications; and
(7) execute warrants and make arrests.
(b) Enforcement of Subpoenas.--In the case of contumacy by, or
refusal to obey a subpoena issued to, any person under subsection
(a)(3), a district court of the United States, after notice to such
person and a hearing, shall have jurisdiction to issue an order
requiring such person to appear and give testimony or to appear and
produce books, records, and other writings, or both, that are the
subject of the subpoena. Any failure to obey such order of the court
may be punished by such court as a contempt thereof.
(c) Best Practices Guidelines.--
(1) In general.--The President, in consultation with the
Interagency Transfer Policy Committee established under section
105, should publish and update ``best practices'' guidelines to
assist persons in developing and implementing, on a voluntary
basis, effective export control programs in compliance with the
regulations issued under this title.
(2) Export compliance program.--The implementation by a
person of an effective export compliance program and a high
quality overall export compliance effort by a person should
ordinarily be given weight as mitigating factors in a civil
penalty action against the person under this title.
(d) Reference to Enforcement.--For purposes of this section, a
reference to the enforcement of, or a violation of, this title includes
a reference to the enforcement or a violation of any order or license
issued pursuant to this title.
(e) Immunity.--A person shall not be excused from complying with
any requirements under this section because of the person's privilege
against self-incrimination, but the immunity provisions of section 6002
of title 18, United States Code, shall apply with respect to any
individual who specifically claims such privilege.
(f) Confidentiality of Information.--
(1) Exemptions from disclosure.--
(A) In general.--Information obtained under this
title may be withheld from disclosure only to the
extent permitted by statute, except that information
described in subparagraph (B) shall be withheld from
public disclosure and shall not be subject to
disclosure under section 552(b)(3) of title 5, United
States Code, unless the release of such information is
determined by the President to be in the national
interest.
(B) Information described.--Information described
in this subparagraph is information submitted or
obtained in connection with an application for a
license to transfer items, other transfer authorization
(or recordkeeping or reporting requirement),
enforcement activity, or other operations under this
title, including--
(i) the license application, license or
other transfer authorization itself,
(ii) classification requests,
(iii) information or evidence obtained in
the course of any investigation, and
(iv) information obtained or furnished in
connection with any international agreement,
treaty, or other obligation.
(2) Information to the congress and gao.--
(A) In general.--Nothing in this section 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 any provision of the Export
Administration Act of 1979 (including such Act
as continued in effect pursuant to the
International Emergency Economic Powers Act),
under previous Acts regarding the control of
exports, under the Export Administration
Regulations, or under this title, including any
report or license application required under
any such provision, shall be made available to
a 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
such committee or subcommittee, or member
thereof, may disclose any information obtained
under the Export Administration Act of 1979
(including such Act as continued in effect
pursuant to the International Emergency
Economic Powers Act), under previous Acts
regarding the control of exports, under the
Export Administration Regulations, or under
this title, that is submitted on a confidential
basis unless the full committee determines that
the withholding of that information is contrary
to the national interest.
(C) Availability to gao.--
(i) In general.--Information described in
clause (i) of subparagraph (B) shall be subject
to the limitations contained in section 716 of
title 31, United States Code.
(ii) Prohibition on further disclosure.--An
officer or employee of the Government
Accountability Office may not disclose, except
to the Congress in accordance with this
paragraph, any such information that is
submitted on a confidential basis or from which
any individual can be identified.
(3) Information sharing.--
(A) In general.--Any department, agency, or office
that obtains information that is relevant to the
enforcement of this title, including information
pertaining to any investigation, shall furnish such
information to each department, agency, or office with
enforcement responsibilities under this section to the
extent consistent with the protection of intelligence,
counterintelligence, and law enforcement sources,
methods, and activities.
(B) Exceptions.--The provisions of this paragraph
shall not apply to information subject to the
restrictions set forth in section 9 of title 13, United
States Code, and return information, as defined in
subsection (b) of section 6103 of the Internal Revenue
Code of 1986 (26 U.S.C. 6103(b)), may be disclosed only
as authorized by that section.
(C) Exchange of information.--The President shall
ensure that the heads of departments, agencies, and
offices with enforcement authorities under this title,
consistent with protection of law enforcement and its
sources and methods--
(i) exchange any licensing and enforcement
information with one another that is necessary
to facilitate enforcement efforts under this
section; and
(ii) consult on a continuing basis with one
another and with the head of other departments,
agencies, and offices that obtain information
subject to this paragraph, in order to
facilitate the exchange of such information.
(D) Information sharing with federal agencies.--
Licensing or enforcement information obtained under
this title may be shared with heads of departments,
agencies, and offices that do not have enforcement
authorities under this title on a case-by-case basis at
the discretion of the President. Such information may
be shared only when the President makes a determination
that the sharing of this information is in the national
interest.
(g) Reporting Requirements.--In the administration of this section,
reporting requirements shall be so designed as to reduce the cost of
reporting, recordkeeping, and export documentation required under this
section, to the extent feasible consistent with effective enforcement
and compilation of useful trade statistics. Reporting, recordkeeping,
and export documentation requirements shall be periodically reviewed
and revised in the light of developments in the field of information
technology.
(h) Civil Forfeiture.--
(1) In general.--Any tangible items seized under subsection
(a) by designated officers or employees shall be subject to
forfeiture to the United States in accordance with applicable
law, except that property seized shall be returned if the
property owner is not found guilty of a civil or criminal
violation under section 109.
(2) Procedures.--Any seizure or forfeiture under this
subsection shall be carried in accordance with the procedures
set forth in section 981 of title 18, United States Code.
SEC. 111. ADMINISTRATIVE PROCEDURE.
The functions exercised under this title shall be subject to
sections 551, 553 through 559, and 701 through 706 of title 5, United
States Code.
SEC. 112. ANNUAL REPORT TO CONGRESS.
(a) In General.--The President shall submit to Congress, by
December 31 of each year, a report on the implementation of this title
during the preceding fiscal year. The report shall also include an
analysis of--
(1) the effect of controls imposed under this title on
transfers of items in addressing threats to the national
security or foreign policy of the United States;
(2) the impact of such controls on the scientific and
technological leadership of the United States; and
(3) the consistency with such controls of export controls
imposed by other countries.
(b) Submission in Classified.--The report under subsection (a) may
be submitted in classified form, in whole or in part, if necessary.
SEC. 113. REPEAL.
The Export Administration Act of 1979 (50 U.S.C. App. 2401 et seq.)
is repealed.
SEC. 114. EFFECT ON OTHER ACTS.
(a) In General.--Except as otherwise provided in this title,
nothing contained in this title shall be construed to modify, repeal,
supersede, or otherwise affect the provisions of any other laws
authorizing control over exports of any commodity.
(b) Coordination of Controls.--The authority granted to the
President under this title shall be exercised in such manner as to
achieve effective coordination with the authority exercised under
section 38 of the Arms Export Control Act (22 U.S.C. 2778).
(c) Civil Aircraft Equipment.--
(1) In general.--Notwithstanding any other provision of
law, any product described in paragraph (2) shall be subject to
export controls exclusively under this title. Any such product
shall not be subject to controls under section 38(b)(2) of the
Arms Export Control Act.
(2) Products described.--A product described in this
paragraph is a product that--
(A) is standard equipment certified by the Federal
Aviation Administration, in civil aircraft and is an
integral part of such aircraft; and
(B) is to be transferred to a country other than a
country to which transfers of items are controlled
under this title.
(d) Nonproliferation Controls.--Nothing in this title shall be
construed to supersede the procedures published by the President
pursuant to section 309(c) of the Nuclear Non-Proliferation Act of
1978.
SEC. 115. TRANSITION PROVISIONS.
(a) In General.--All delegations, rules, regulations, orders,
determinations, licenses, or other forms of administrative action which
have been made, issued, conducted, or allowed to become effective under
the Export Administration Act of 1979 and are in effect at the time
this title takes effect, shall continue in effect according to their
terms until modified, superseded, set aside, or revoked under this
title.
(b) Administrative and Judicial Proceedings.--This title shall not
affect any administrative or judicial proceedings commenced or any
application for a license made, under the Export Administration Act of
1979, that is pending at the time this title takes effect. Any such
proceedings, and any action on such application, shall continue under
the Export Administration Act of 1979 as if that Act had not been
repealed.
(c) Certain Determinations and References.--
(1) State sponsors of terrorism.--Any determination that
was made under section 6(j) of the Export Administration Act of
1979, and is in effect on the day before the effective date of
this title, shall continue in effect as if the determination
had been made under section 104(c) of this Act.
(2) Reference.--Any reference in any other provision of law
to a country the government of which the Secretary of State has
determined, for purposes of section 6(j) of the Export
Administration Act of 1979, is a government that has repeatedly
provided support for acts of international terrorism shall be
deemed to refer to a country the government of which the
President has determined, for purposes of section 104(c) of
this Act, is a government that has repeatedly provided support
for acts of international terrorism.
TITLE II--ANTIBOYCOTT PROVISIONS
SEC. 201. SHORT TITLE.
This title may be cited as the ``Antiboycott Act''.
SEC. 202. POLICY.
(a) In General.--It is the policy of the United States--
(1) to oppose restrictive trade practices or boycotts
fostered or imposed by foreign countries against other
countries friendly to the United States or against any United
States person;
(2) to encourage and, in specified cases, require United
States persons engaged in the export of goods or technology or
other information to refuse to take actions, including
furnishing information or entering into or implementing
agreements, which have the effect of furthering or supporting
the restrictive trade practices or boycotts fostered or imposed
by any foreign country against a country friendly to the United
States or against any United States person; and
(3) to foster international cooperation and the development
of international rules and institutions to assure reasonable
access to world supplies.
(b) Prohibitions and Exceptions.--
(1) Prohibitions.--In order to carry out the purposes set
forth in subsection (a), the President shall issue regulations
prohibiting any United States person, with respect to that
person's activities in the interstate or foreign commerce of
the United States, from taking or knowingly agreeing to take
any of the following actions with intent to comply with,
further, or support any boycott fostered or imposed by a
foreign country against a country that is friendly to the
United States and is not itself the object of any form of
boycott pursuant to United States law or regulation:
(A) Refusing, or requiring any other person to
refuse, to do business with or in the boycotted
country, with any business concern organized under the
laws of the boycotted country, with any national or
resident of the boycotted country, or with any other
person, pursuant to an agreement with, or requirement
of, or a request from or on behalf of the boycotting
country (subject to the condition that the intent
required to be associated with such an act in order to
constitute a violation of the prohibition is not
indicated solely by the mere absence of a business
relationship with or in the boycotted country, with any
business concern organized under the laws of the
boycotted country, with any national or resident of the
boycotted country, or with any other person).
(B) Refusing, or requiring any other person to
refuse, to employ or otherwise discriminate against any
United States person on the basis of the race,
religion, sex, or national origin of that person or of
any owner, officer, director, or employee of such
person.
(C) Furnishing information with respect to the
race, religion, sex, or national origin of any United
States person or of any owner, officer, director, or
employee of such person.
(D) Furnishing information (other than furnishing
normal business information in a commercial context, as
defined by the Secretary) about whether any person has,
has had, or proposes to have any business relationship
(including a relationship by way of sale, purchase,
legal or commercial representation, shipping or other
transport, insurance, investment, or supply) with or in
the boycotted country, with any business concern
organized under the laws of the boycotted country, with
any national or resident of the boycotted country, or
with any other person that is known or believed to be
restricted from having any business relationship with
or in the boycotting country.
(E) Furnishing information about whether any person
is a member of, has made a contribution to, or is
otherwise associated with or involved in the activities
of any charitable or fraternal organization which
supports the boycotted country.
(F) Paying, honoring, confirming, or otherwise
implementing a letter of credit which contains any
condition or requirement the compliance with which is
prohibited by regulations issued pursuant to this
paragraph, and no United States person shall, as a
result of the application of this paragraph, be
obligated to pay or otherwise honor or implement such
letter of credit.
(2) Exceptions.--Regulations issued pursuant to paragraph
(1) shall provide exceptions for--
(A) compliance, or agreement to comply, with
requirements--
(i) prohibiting the import of items from
the boycotted country or items produced or
provided, by any business concern organized
under the laws of the boycotted country or by
nationals or residents of the boycotted
country; or
(ii) prohibiting the shipment of items to
the boycotting country on a carrier of the
boycotted country or by a route other than that
prescribed by the boycotting country or the
recipient of the shipment;
(B) compliance, or agreement to comply, with import
and shipping document requirements with respect to the
country of origin, the name of the carrier and route of
shipment, the name of the supplier of the shipment, or
the name of the provider of other services, except
that, for purposes of applying any exception under this
subparagraph, no information knowingly furnished or
conveyed in response to such requirements may be stated
in negative, blacklisting, or similar exclusionary
terms, other than with respect to carriers or route of
shipment as may be permitted by such regulations in
order to comply with precautionary requirements
protecting against war risks and confiscation;
(C) compliance, or agreement to comply, in the
normal course of business with the unilateral and
specific selection by a boycotting country, or a
national or resident thereof, of carriers, insurers,
suppliers of services to be performed within the
boycotting country, or specific items which, in the
normal course of business, are identifiable by source
when imported into the boycotting country;
(D) compliance, or agreement to comply, with export
requirements of the boycotting country relating to
shipment or transshipment of exports to the boycotted
country, to any business concern of or organized under
the laws of the boycotted country, or to any national
or resident of the boycotted country;
(E) compliance by an individual, or agreement by an
individual to comply, with the immigration or passport
requirements of any country with respect to such
individual or any member of such individual's family or
with requests for information regarding requirements of
employment of such individual within the boycotting
country; and
(F) compliance by a United States person resident
in a foreign country, or agreement by such a person to
comply, with the laws of the country with respect to
the person's activities exclusively therein, and such
regulations may contain exceptions for such resident
complying with the laws or regulations of the foreign
country governing imports into such country of
trademarked, trade-named, or similarly specifically
identifiable products, or components of products for
such person's own use, including the performance of
contractual services within that country.
(3) Limitation on exceptions.--Regulations issued pursuant
to paragraphs (2)(C) and (2)(F) shall not provide exceptions
from paragraphs (1)(B) and (1)(C).
(4) Antitrust and civil rights laws not affected.--Nothing
in this subsection may be construed to supersede or limit the
operation of the antitrust or civil rights laws of the United
States.
(5) Evasion.--This section applies to any transaction or
activity undertaken by or through a United States person or any
other person with intent to evade the provisions of this
section or the regulations issued pursuant to this subsection.
The regulations issued pursuant to this section shall expressly
provide that the exceptions set forth in paragraph (2) do not
permit activities or agreements (expressed or implied by a
course of conduct, including a pattern of responses) otherwise
prohibited, which are not within the intent of such exceptions.
(c) Foreign Policy Controls.--In addition to the regulations issued
pursuant to subsection (b), regulations issued under title I to carry
out the policy set forth in section 102(3) shall implement the policies
set forth in section.
(d) Reports.--Regulations issued under this section shall require
that any United States person receiving a request to furnish
information, enter into or implement an agreement, or take any other
action referred to in subsection (a) shall report that request to the
Secretary of Commerce, together with any other information concerning
the request that the Secretary determines appropriate. The person shall
also submit to the Secretary of Commerce a statement regarding whether
the person intends to comply, and whether the person has complied, with
the request. Any report filed pursuant to this subsection shall be made
available promptly for public inspection and copying, except that
information regarding the quantity, description, and value of any item
to which such report relates may be kept confidential if the Secretary
of Commerce determines that disclosure of that information would place
the United States person involved at a competitive disadvantage. The
Secretary of Commerce shall periodically transmit summaries of the
information contained in the reports to the Secretary of State for such
action as the Secretary of State, in consultation with the Secretary of
Commerce, considers appropriate to carry out the purposes set forth in
subsection (a).
(e) Preemption.--The provisions of this section and the regulations
issued under this section shall preempt any law, rule, or regulation
that--
(1) is a law, rule, or regulation of any of the several
States or the District of Columbia, or any of the territories
or possessions of the United States, or of any governmental
subdivision thereof; and
(2) pertains to participation in, compliance with,
implementation of, or the furnishing of information regarding
restrictive trade practices or boycotts fostered or imposed by
foreign countries against other countries.
SEC. 203. ENFORCEMENT.
(a) Civil Penalties.--The President may impose the following civil
penalties on a person who violates section 202 or any regulation issued
under this section:
(1) A fine of not more than $250,000 or an amount that is
twice the amount of the transaction that is the basis of the
violation with respect to which the penalty is imposed.
(2) Revocation of a license issued under title I to the
person.
(3) A prohibition of the person's right and ability to
export or otherwise transfer outside the United States any
good, service, or information, whether or not subject to
controls under this Act.
(b) Procedures.--Any civil penalty under this section may be
imposed only after notice and opportunity for an agency hearing on the
record in accordance with sections 554 through 557 of title 5, United
States Code, and shall be subject to judicial review in accordance with
chapter 7 of such title.
(c) Standards for Levels of Civil Penalty.--The President may by
regulation provide standards for establishing levels of civil penalty
under this section based upon the seriousness of the violation, the
culpability of the violator, and the violator's record of cooperation
with the Government in disclosing the violation.
TITLE III--SANCTIONS REGARDING MISSILE PROLIFERATION AND CHEMICAL AND
BIOLOGICAL WEAPONS PROLIFERATION
SEC. 301. MISSILE PROLIFERATION CONTROL VIOLATIONS.
(a) Violations by United States Persons.--
(1) Sanctions.--
(A) Sanctionable activity.--The President shall
impose the applicable sanctions described in
subparagraph (B) if the President determines that a
United States person knowingly--
(i) exports, transfers, or otherwise
engages in the trade of any item on the MTCR
Annex, in violation of the provisions of
section 38 (22 U.S.C. 2778) or chapter 7 of the
Arms Export Control Act, title I of this Act,
or any regulations or orders issued under any
such provisions,
(ii) conspires to or attempts to engage in
such export, transfer, or trade, or
(iii) facilitates such export, transfer, or
trade by any other person.
(B) Sanctions.--The sanctions that apply to a
United States person under subparagraph (A) are the
following:
(i) If the item on the MTCR Annex involved
in the export, transfer, or trade is missile
equipment or technology within category II of
the MTCR Annex, then the President shall deny
to such United States person, for a period of 2
years, licenses for the transfer of missile
equipment or technology controlled under title
I.
(ii) If the item on the MTCR Annex involved
in the export, transfer, or trade is missile
equipment or technology within category I of
the MTCR Annex, then the President shall deny
to such United States person, for a period of
not less than 2 years, all licenses for items
the transfer of which is controlled under title
I.
(2) Discretionary sanctions.--In the case of any
determination referred to in paragraph (1), the President may
pursue any other appropriate penalties under section 109 of
this Act.
(3) Waiver.--The President may waive the imposition of
sanctions under paragraph (1) on a person with respect to a
product or service if the President certifies to the Congress
that--
(A) the product or service is essential to the
national security of the United States; and
(B) such person is a sole source supplier of the
product or service, the product or service is not
available from any alternative reliable supplier, and
the need for the product or service cannot be met in a
timely manner by improved manufacturing processes or
technological developments.
(b) Transfers of Missile Equipment or Technology by Foreign
Persons.--
(1) Sanctions.--
(A) Sanctionable activity.--Subject to paragraphs
(3) through (7), the President shall impose the
applicable sanctions under subparagraph (B) on a
foreign person if the President--
(i) determines that a foreign person
knowingly--
(I) exports, transfers, or
otherwise engages in the trade of any
MTCR equipment or technology that
contributes to the design, development,
or production of missiles in a country
that is not an MTCR adherent and would
be, if it were United States-origin
equipment or technology, subject to the
jurisdiction of the United States under
title I;
(II) conspires to or attempts to
engage in such export, transfer, or
trade; or
(III) facilitates such export,
transfer, or trade by any other person;
or
(ii) has made a determination with respect
to the foreign person under section 73(a) of
the Arms Export Control Act.
(B) Sanctions.--The sanctions that apply to a
foreign person under subparagraph (A) are the
following:
(i) If the item involved in the export,
transfer, or trade is within category II of the
MTCR Annex, then the President shall deny, for
a period of 2 years, licenses for the transfer
to such foreign person of missile equipment or
technology the transfer of which is controlled
under title I.
(ii) If the item involved in the export,
transfer, or trade is within category I of the
MTCR Annex, then the President shall deny, for
a period of not less than 2 years, licenses for
the transfer to such foreign person of items
the transfer of which is controlled under title
I.
(2) Inapplicability with respect to mtcr adherents.--
Paragraph (1) does not apply with respect to--
(A) any export, transfer, or trading activity that
is authorized by the laws of an MTCR adherent, if such
authorization is not obtained by misrepresentation or
fraud; or
(B) any export, transfer, or trade of an item to an
end user in a country that is an MTCR adherent.
(3) Effect of enforcement actions by mtcr adherents.--
Sanctions set forth in paragraph (1) may not be imposed under
this subsection on a person with respect to acts described in
such paragraph or, if such sanctions are in effect against a
person on account of such acts, such sanctions shall be
terminated, if an MTCR adherent is taking judicial or other
enforcement action against that person with respect to such
acts, or that person has been found by the government of an
MTCR adherent to be innocent of wrongdoing with respect to such
acts.
(4) Advisory opinions.--The President may, upon the request
of any person, issue an advisory opinion to that person as to
whether a proposed activity by that person would subject that
person to sanctions under this subsection. Any person who
relies in good faith on such an advisory opinion which states
that the proposed activity would not subject a person to such
sanctions, and any person who thereafter engages in such
activity, may not be made subject to such sanctions on account
of such activity.
(5) Waiver and report to congress.--
(A) Waiver authority.--In any case other than one
in which an advisory opinion has been issued under
paragraph (4) stating that a proposed activity would
not subject a person to sanctions under this
subsection, the President may waive the application of
paragraph (1) to a foreign person if the President
determines that such waiver is essential to the
national security of the United States.
(B) Notification and report to congress.--In the
event that the President decides to apply the waiver
described in subparagraph (A), the President shall so
notify the Congress not less than 20 working days
before issuing the waiver. Such notification shall
include a report fully articulating the rationale and
circumstances which led the President to apply the
waiver.
(6) Additional waiver.--The President may waive the
imposition of sanctions under paragraph (1) on a person with
respect to a product or service if the President certifies to
the Congress that--
(A) the product or service is essential to the
national security of the United States; and
(B) such person is a sole source supplier of the
product or service, the product or service is not
available from any alternative reliable supplier, and
the need for the product or service cannot be met in a
timely manner by improved manufacturing processes or
technological developments.
(7) Exceptions.--The President shall not apply the sanction
under this subsection prohibiting the importation of the
products of a foreign person--
(A) in the case of procurement of defense articles
or defense services--
(i) under existing contracts or
subcontracts, including the exercise of options
for production quantities to satisfy
requirements essential to the national security
of the United States;
(ii) if the President determines that the
person to which the sanctions would be applied
is a sole source supplier of the defense
articles and services, that the defense
articles or services are essential to the
national security of the United States, and
that alternative sources are not readily or
reasonably available; or
(iii) if the President determines that such
articles or services are essential to the
national security of the United States under
defense coproduction agreements or NATO
Programs of Cooperation;
(B) to products or services provided under
contracts entered into before the date on which the
President publishes his intention to impose the
sanctions; or
(C) to--
(i) spare parts,
(ii) component parts, but not finished
products, essential to United States products
or production,
(iii) routine services and maintenance of
products, to the extent that alternative
sources are not readily or reasonably
available, or
(iv) information and technology essential
to United States products or production.
(c) Definitions.--In this section:
(1) Defense articles; defense services.--The terms
``defense articles'' and ``defense services'' mean those items
on the United States Munitions List or are otherwise controlled
under the Arms Export Control Act.
(2) Missile.--The term ``missile'' means a category I
system as defined in the MTCR Annex, and any other unmanned
delivery system of similar capability, as well as the specially
designed production facilities for these systems.
(3) Missile technology control regime; mtcr.--The term
``Missile Technology Control Regime'' or ``MTCR'' means the
policy statement, between the United States, the United
Kingdom, the Federal Republic of Germany, France, Italy,
Canada, and Japan, announced on April 16, 1987, to restrict
sensitive missile-relevant transfers based on the MTCR Annex,
and any amendments thereto.
(4) MTCR adherent.--The term ``MTCR adherent'' means a
country that participates in the MTCR or that, pursuant to an
international understanding to which the United States is a
party, controls MTCR equipment or technology in accordance with
the criteria and standards set forth in the MTCR.
(5) MTCR annex.--The term ``MTCR Annex'' means the
Guidelines and Equipment and Technology Annex of the MTCR, and
any amendments thereto.
(6) Missile equipment or technology; mtcr equipment or
technology.--The terms ``missile equipment or technology'' and
``MTCR equipment or technology'' mean those items listed in
category I or category II of the MTCR Annex.
(7) Foreign person.--The term ``foreign person'' means any
person other than a United States person.
(8) Person.--The term ``person'' means a natural person, a
corporation, business association, partnership, society, or
trust, any other nongovernmental entity, organization, or
group, and any governmental entity operating as a business
enterprise, and any successor of any such entity.
(9) Otherwise engaged in the trade of.--The term
``otherwise engaged in the trade of'' means, with respect to a
particular export or transfer, to be a freight forwarder or
designated exporting agent, or a consignee or end user of the
item to be exported or transferred.
SEC. 302. CHEMICAL AND BIOLOGICAL WEAPONS PROLIFERATION SANCTIONS.
(a) Imposition of Sanctions.--
(1) Determination by the president.--Except as provided in
subsection (b)(2), the President shall impose the sanction
described in subsection (c) if the President determines that a
foreign person has knowingly and materially contributed--
(A) through the export from the United States of
any item that is subject to the jurisdiction of the
United States under this title, or
(B) through the export from any other country of
any item that would be, if they were United States
goods or technology, subject to the jurisdiction of the
United States under this title,
to the efforts by any foreign country, project, or entity
described in paragraph (2) to use, develop, produce, stockpile,
or otherwise acquire chemical or biological weapons.
(2) Countries, projects, or entities receiving
assistance.--Paragraph (1) applies in the case of--
(A) any foreign country that the President
determines has, at any time after January 1, 1980--
(i) used chemical or biological weapons in
violation of international law;
(ii) used lethal chemical or biological
weapons against its own nationals; or
(iii) made substantial preparations to
engage in the activities described in clause
(i) or (ii);
(B) any foreign country whose government is
determined for purposes of section 104(c) of this Act
to be a government that has repeatedly provided support
for acts of international terrorism; or
(C) any other foreign country, project, or entity
designated by the President for purposes of this
section.
(3) Persons against which sanctions are to be imposed.--A
sanction shall be imposed pursuant to paragraph (1) on--
(A) the foreign person with respect to which the
President makes the determination described in that
paragraph;
(B) any successor entity to that foreign person;
and
(C) any foreign person that is a parent,
subsidiary, or affiliate of that foreign person if that
parent, subsidiary, or affiliate knowingly assisted in
the activities which were the basis of that
determination.
(b) Consultations With and Actions by Foreign Government of
Jurisdiction.--
(1) Consultations.--If the President makes the
determinations described in subsection (a)(1) with respect to a
foreign person, the Congress urges the President to initiate
consultations immediately with the government with primary
jurisdiction over that foreign person with respect to the
imposition of a sanction pursuant to this section.
(2) Actions by government of jurisdiction.--In order to
pursue such consultations with that government, the President
may delay imposition of a sanction pursuant to this section for
a period of up to 90 days. Following such consultations, the
President shall impose the sanction unless the President
determines and certifies to the Congress that that government
has taken specific and effective actions, including appropriate
penalties, to terminate the involvement of the foreign person
in the activities described in subsection (a)(1). The President
may delay imposition of the sanction for an additional period
of up to 90 days if the President determines and certifies to
the Congress that that government is in the process of taking
the actions described in the preceding sentence.
(3) Report to congress.--The President shall report to the
Congress, not later than 90 days after making a determination
under subsection (a)(1), on the status of consultations with
the appropriate government under this subsection, and the basis
for any determination under paragraph (2) of this subsection
that such government has taken specific corrective actions.
(c) Sanction.--
(1) Description of sanction.--The sanction to be imposed
pursuant to subsection (a)(1) is, except as provided that the
United States Government shall not procure, or enter into any
contract for the procurement of, any goods or services from any
person described in subsection (a)(3).
(2) Exceptions.--The President shall not be required to
apply or maintain a sanction under this section--
(A) in the case of procurement of defense articles
or defense services--
(i) under existing contracts or
subcontracts, including the exercise of options
for production quantities to satisfy United
States operational military requirements;
(ii) if the President determines that the
person or other entity to which the sanctions
would otherwise be applied is a sole source
supplier of the defense articles or services,
that the defense articles or services are
essential, and that alternative sources are not
readily or reasonably available; or
(iii) if the President determines that such
articles or services are essential to the
national security under defense coproduction
agreements;
(B) to products or services provided under
contracts entered into before the date on which the
President publishes his intention to impose sanctions;
(C) to--
(i) spare parts,
(ii) component parts, but not finished
products, essential to United States products
or production, or
(iii) routine servicing and maintenance of
products, to the extent that alternative
sources are not readily or reasonably
available;
(D) to information and technology essential to
United States products or production; or
(E) to medical or other humanitarian items.
(d) Termination of Sanctions.--A sanction imposed pursuant to this
section shall apply for a period of at least 12 months following the
imposition of one sanction and shall cease to apply thereafter only if
the President determines and certifies to the Congress that reliable
information indicates that the foreign person with respect to which the
determination was made under subsection (a)(1) has ceased to aid or
abet any foreign government, project, or entity in its efforts to
acquire chemical or biological weapons capability as described in that
subsection.
(e) Waiver.--
(1) Criterion for waiver.--The President may waive the
application of any sanction imposed on any person pursuant to
this section, after the end of the 12-month period beginning on
the date on which that sanction was imposed on that person, if
the President determines and certifies to the Congress that
such waiver is important to the national security interests of
the United States.
(2) Notification of and report to congress.--If the
President decides to exercise the waiver authority provided in
paragraph (1), the President shall so notify the Congress not
less than 20 days before the waiver takes effect. Such
notification shall include a report fully articulating the
rationale and circumstances which led the President to exercise
the waiver authority.
(f) Definitions.--In this section:
(1) Defense articles; defense services.--The terms
``defense articles'' and ``defense services'' mean those items
on the United States Munitions List or are otherwise controlled
under the Arms Export Control Act.
(2) Foreign person.--The term ``foreign person'' means--
(A) an individual who is not a citizen of the
United States or an alien admitted for permanent
residence to the United States; or
(B) a corporation, partnership, or other entity
which is created or organized under the laws of a
foreign country or which has its principal place of
business outside the United States.
(3) Parent, subsidiary, affiliate.--An entity is--
(A) a ``parent'' of a foreign person if that entity
owns or controls that foreign person;
(B) a ``subsidiary'' of a foreign person if that
entity is owned or controlled by that foreign person;
and
(C) and ``affiliate'' of a foreign person if the
entity and the foreign person are under common
ownership or control by a third entity.
<all>