HR 5828 IH
110th CONGRESS
2d Session
H. R. 5828
To enhance the reliability of information in the Automated Export System, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
April 17, 2008
Mr. MANZULLO (for himself and Mr. SMITH of Washington) introduced
the following bill; which was referred to the Committee on Foreign
Affairs
A BILL
To enhance the reliability of information in the Automated Export System, 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.
This Act may be cited as the `Securing Exports Through Coordination and Technology Act'.
SEC. 2. MANDATORY ELECTRONIC FILING OF EXPORT DATA.
Section 1404(b) of the Foreign Relations Authorization Act,
Fiscal Year 2003 (13 U.S.C. 301 note) is amended to read as follows:.
`(1) FILING THROUGH AES- The Secretary of Commerce, in
consultation with the Secretary of State, the Secretary of Defense, the
Secretary of the Treasury, and the Secretary of Homeland Security,
shall publish regulations in the Federal Register to require that upon
the effective date of the regulations, persons who are required to file
Shipper's Export Declarations under chapter 9 of title 13, United
States Code, file (either themselves or through their intermediaries)
such Declarations through the Automated Export System before the items
are exported from any United States port, unless the Secretary of
Commerce determines that it is appropriate to grant an exception to
this requirement. Such filing of data shall, at a minimum, include--
`(A) the name and address of the principal party-in-interest in the United States;
`(B) the foreign principal party-in-interest;
`(C) all intermediate consignees;
`(D) the ultimate consignee;
`(E) the commodity classification of each item being exported;
`(F) when appropriate, the license number or regulatory authorization for the export; and
`(G) a declaration, under penalty of perjury under
the laws of the United States, that the information filed under this
paragraph is true and correct.
`(2) INTERMEDIARY DEFINED- In this subsection, the term
`intermediary' means a freight forwarder, a non-vessel operating common
carrier (NVOCC), an ATA (Admission Temporaire/Temporary Admission)
Carnet national guaranteeing association and its service providers, or
any other similar entity as determined by the Secretary of Commerce.'.
SEC. 3. CONFIDENTIALITY OF SHIPPER'S EXPORT DECLARATIONS; CONFERENCES; AUTOMATED EXPORT SYSTEM LICENSES AND FILINGS.
Chapter 9 of title 13, United States Code, is amended--
(1) by redesignating sections 302 through 307 as sections 306 through 311, respectively; and
(2) by inserting after section 301 the following new sections:
`Sec. 302. Confidentiality of Shipper's Export Declarations
`(a) Confidentiality- Shipper's Export Declarations and
Automated Export System filings (or any successor document), wherever
located, shall be exempt from disclosure to the public, except to the
extent that the information in such filings is made available under
subsection (b)(1) and is introduced into evidence, and made a part of
the public record, in an enforcement proceeding pursuant thereto.
`(b) Sharing With Other Agencies and Governments-
`(1) AGENCIES IN THE UNITED STATES- The Secretary
shall, if the Secretary determines that it is in the national interest
to do so, provide for the sharing of Shipper's Export Declaration
information with other Federal departments and agencies in order to
enforce or administer export laws and regulations of the United States,
and for such other purposes as the Secretary may determine.
`(2) FOREIGN GOVERNMENTS- The Secretary may, if the
Secretary determines, on a case by case basis, that it is in the
national interest to do so, provide for the sharing of Shipper's Export
Declaration information with foreign governments to assist in the
enforcement of export laws and regulations of the United States and to
conduct and coordinate programs to combat terrorism and the
proliferation of weapons of mass destruction, except that the sharing
of such information may be permitted only if the foreign government
concerned--
`(A) has certified to the Secretary that the
information shared will only be used for the purpose of enforcing
export laws and regulations of the United States, international
agreements providing for the nonproliferation of weapons to which the
United States is a party, or multilateral export control regimes to
which the United States is a party; and
`(B) has, through a bilateral or multilateral
agreement (including a memorandum of understanding) to which the United
States is a party, agreed that the information shared will not be
disclosed to any commercial entity.
`(c) Information Not To Be Withheld From Congress- Nothing
in this section shall be construed as authorizing the withholding of
information from the Congress.
`Sec. 303. Conferences and seminars
`(a) Mandatory Conference Participation- The Secretary
shall work with the Secretary of State, the Secretary of Defense, the
Secretary of Homeland Security, and the Secretary of the Treasury to
ensure that appropriate personnel of each of their respective
departments and agencies that are involved in the regulation of exports
or the enforcement of such regulation are made available to participate
in fora the purpose of which is to educate exporters about laws and
regulations of the United States governing exports and about the
Automated Export System in particular, including through seminars,
educational or training meetings, exhibitions, symposiums, and other
similar meetings.
`(b) Authority To Collect Fees- The Secretary may collect
fees from any individual or other person attending or participating in
any forum described in subsection (a) that is conducted by, or jointly
with, the Department of Commerce. The Secretary may use contractors to
collect such fees. Fees under this subsection may be collected in
advance of the forum.
`(c) Disposition of Collected Fees- Amounts collected under
subsection (b) shall be used to pay all or part of the cost of fora
described in subsection (a), and shall be credited to the account from
which the costs of such fora have been paid or will be paid.
`(d) Budget for Participating Agencies- In the case of any
agency that does not have the available funds to participate in a forum
under subsection (a), the Secretary shall make such sums available,
from fees collected under subsection (b), as are necessary to allow
such participation by the agency.
`(e) Availability of Materials to the Public- The Secretary
shall make available to the public, including through its public
website, the materials provided for the fora held under subsection (a).
`Sec. 304. Automated Export System licenses for filers
`(1) IN GENERAL- The Secretary may establish a
licensing program to grant licenses to persons to file information in
the Automated Export System, either on behalf of themselves or acting
as an intermediary. Such licensing program may provide licenses to
individuals as well as any corporation, association, or partnership
that is organized under the laws of the United States or of any State,
the District of Columbia, or any commonwealth, territory, or possession
of the United States. Such licensing program may further provide for
the authorization of multiple filers of data on behalf of any such
corporation, association, or partnership.
`(2) QUALIFICATIONS FOR INDIVIDUALS- The Secretary may
establish qualification requirements for an individual applying for a
license under this subsection, except that an individual may be granted
a license only if the individual is a United States citizen, an alien
lawfully admitted for permanent residence to the United States, or a
national of the United States (in the case of a resident of a territory
or possession of the United States). In assessing the qualification of
a license applicant, the Secretary may conduct an examination to
determine the applicant's knowledge of the Automated Export System and
laws, regulations, and procedures related to the export of goods from
the United States, and may require participation in a continuing
education program on a periodic basis. The Secretary may also obtain
information to determine an applicant's fitness and character to act as
an Automated Export System filer.
`(3) LICENSES FOR CORPORATIONS AND OTHER BUSINESS
ENTITIES- The Secretary may grant an Automated Export System filing
license to a corporation, association, or partnership only if at least
one official of the corporation or association who is designated by the
corporation or association, or one member of the partnership who is
authorized to act on behalf of the partnership--
`(A) holds a valid Automated Export System license under paragraph (2);
`(B) is responsible for the supervision and control
of filing Shipper's Export Declaration information in the Automated
Export System; and
`(C) is a United States citizen, an alien lawfully
admitted for permanent residence to the United States, or a national of
the United States (in the case of a resident of a territory or
possession of the United States).
`(4) LAPSE OF LICENSE- Licenses under this subsection
shall be granted for a period of not less than 3 years, and may be
renewed in such manner and under such conditions as are established by
the Secretary.
`(b) Denial, Suspension, or Revocation of License-
`(1) GENERAL RULE- The Secretary may deny, revoke, or
suspend a license or license application under subsection (a) if the
Secretary has reason to believe that the applicant or licensee has
violated or will violate any regulations issued by the Secretary under
this section or any law or regulation of the United States controlling
exports. The Secretary may provide rules for notifying licensees and
license applicants of the Secretary's process for denying, revoking, or
suspending a license or license application, consistent with the
Secretary's responsibility to protect national security.
`(2) PROCEDURES FOR DENIAL, REVOCATION, OR SUSPENSION-
`(A) IN GENERAL- If an application is denied or a
license revoked or suspended under paragraph (1), the Secretary shall
send the applicant or licensee notice in writing specifically setting
forth the grounds for denial, suspension, or revocation, shall allow
the applicant or licensee a period of 30 calendar days beginning on the
date on which the notice is received to respond in writing, and shall
advise the licensee or applicant of the right to a hearing. An
applicant or licensee may request an extension of time for such
response, and the Secretary shall grant such extension for good cause
shown. If no response is filed within that 30-day period, or any
extension thereof, and the Secretary determines that the denial,
suspension, or revocation is still warranted, the denial, suspension,
or revocation shall become final.
`(B) HEARING- If a timely response is received
under subparagraph (A) and the licensee or applicant requests a
hearing, a hearing shall be held within 30 calendar days after the date
on which the request is received, or at a later date if the applicant
requests an extension and shows good cause therefor. An administrative
law judge appointed under section 3105 of title 5, United States Code,
shall preside at the hearing, which shall be conducted in accordance
with regulations issued by the Secretary. The administrative law judge
shall issue a written decision, based solely on the record, setting
forth the findings of fact, and the reasons for the decision.
`(C) SUSPENSION OF LICENSE PENDING APPEAL- In a
case in which a person appeals a decision revoking or suspending a
license under this subsection, including an appeal under subsection
(c), the Secretary may order that the license continue to be suspended
while the appeal is pending.
`(c) Denial, Suspension, or Revocation of License-
`(1) GENERAL RULE- The Secretary may deny, revoke, or
suspend a license or license application under subsection (a) if the
Secretary has reason to believe that the applicant or licensee has
violated or will violate any regulations issued by the Secretary under
this section or any law or regulation of the United States controlling
exports. The Secretary may provide rules for notifying licensees and
license applicants of the Secretary's process for denying, revoking, or
suspending a license or license application, consistent with the
Secretary's responsibility to protect national security.
`(2) PROCEDURES FOR DENIAL, REVOCATION, OR SUSPENSION-
`(A) IN GENERAL- If an application is denied or a
license revoked or suspended under paragraph (1), the Secretary shall
send the applicant or licensee notice in writing specifically setting
forth the grounds for denial, suspension, or revocation, shall allow
the applicant or licensee a period of 30 calendar days beginning on the
date on which the notice is received to respond in writing, and shall
advise the licensee or applicant of the right to a hearing. An
applicant or licensee may request an extension of time for such
response, and the Secretary shall grant such extension for good cause
shown. If no response is filed within that 30-day period, or any
extension thereof, and the Secretary determines that the denial,
suspension, or revocation is still warranted, the denial, suspension,
or revocation shall become final.
`(B) HEARING- If a timely response is received
under subparagraph (A) and the licensee or applicant requests a
hearing, a hearing shall be held within 30 calendar days after the date
the request is received, or at a later date if the applicant requests
an extension and shows good cause therefor. An administrative law judge
appointed under section 3105 of title 5, United States Code, shall
preside at the hearing, which shall be conducted in accordance with
regulations issued by the Secretary. The administrative law judge shall
issue a written decision, based solely on the record, setting forth the
findings of fact, and the reasons for the decision.
`(C) SUSPENSION OF LICENSE PENDING APPEAL- In a
case in which a person appeals a decision revoking or suspending a
license under this subsection, including an appeal under subsection
(c), the Secretary may order that the license continue to be suspended
while the appeal is pending.
`(3) SETTLEMENT AND COMPROMISE- The Secretary may
settle and compromise any proceeding that has been instituted under
this subsection according to the terms and conditions agreed to by the
parties, including the reduction of any proposed suspension or
revocation.
`(4) LIMITATION OF ACTIONS- A proceeding under this
subsection may be commenced only if the appropriate service of written
notice is made within 3 years after the date on which the alleged act
described in paragraph (1) was committed, except that if the alleged
act consists of fraud, the 3-year period shall begin on the date on
which the alleged act was discovered.
`(1) IN GENERAL- A licensee under this section, or an
applicant for a license under this section, may appeal any decision of
the Secretary denying, suspending, or revoking the license by filing in
the appropriate United States district court, within 60 days after the
date on which the decision is issued, a written petition requesting
that the decision be modified or set aside in whole or in part. A copy
of the petition shall be served upon the Secretary or the Secretary's
designee. In cases involving revocation or suspension of a license, the
Secretary, after receiving the petition, shall file in the court the
record upon which the decision complained of was entered.
`(2) FAILURE TO APPEAL- If an appeal is not filed
within the time limits specified in paragraph (1), the decision of the
Secretary shall be final and conclusive.
`(e) Fees and Charges- The Secretary may issue regulations
prescribing reasonable fees and charges, with particular sensitivity to
small businesses, to defray the costs of the Secretary in carrying out
this section.
`(f) Regulations- The Secretary shall provide a period of
at least 90 days for the submission of public comments on any
regulations issued to carry out this section, before such regulations
may become effective.
`Sec. 305. Blocking prohibited or restricted exports
`(a) In General- The Secretary, in consultation with the
Secretary of State, the Secretary of Defense, the Secretary of Homeland
Security, and the Secretary of the Treasury, shall issue regulations to
ensure that the Automated Export System will not accept the filing of
data in connection with an export from the United States if the name or
address of any party to a transaction involved in the intended export,
or the country of destination of the intended export, would result in
the export violating the prohibitions or restrictions in the export
control or trade sanctions regulations administered by the Secretary,
the Secretary of State, or the Secretary of the Treasury.
`(b) Incorporation Into Automated Export System of Changes
in Law- Not later than 1 year after the date of the enactment of
Securing Exports Through Coordination and Technology Act, the
Secretary, in consultation with the Secretary of State, the Secretary
of Defense, the Secretary of Homeland Security, and the Secretary of
the Treasury, shall ensure, to the extent feasible, that changes in
laws and regulations controlling exports, including changes under the
Arms Export Control Act, the Export Administration Act of 1979, the
International Economic Emergency Powers Act, and the Foreign Assistance
Act of 1961, are promptly reflected in the Automated Export System.
`(c) Minimum Requirements- The Secretary shall ensure that
the Automated Export System contains at least the following operational
features and provides the following notifications to filers:
`(1) Codes entered into the Automated Export System to
identify an export, whether by classification under the Harmonized
Tariff Schedule or otherwise, will alert the exporter of potential
export license requirements under the Export Administration Regulations
or the International Traffic in Arms Regulations (ITAR).
`(2) Automated Export System will issue a Fatal Error notice when data entered for an export contain any of the following:
`(A) The name or address of an individual or legal
entity that has been described on any restricted party list and the
data are not accompanied by the necessary export authorization.
`(B) The intermediate or ultimate country of
destination is subject to trade sanctions imposed by the United States
and the data are not accompanied by the necessary export authorization.
`(C) In the case of defense articles and defense
services, the country of the intermediate or ultimate consignee is
subject to an arms embargo or prohibition imposed by the United State
and the data are not accompanied by the necessary export license.
`(3) Automated Export System will issue compliance
alerts or other warnings to the filer when data for an export are
entered containing any of the following errors or omissions:
`(A) The Harmonized Tariff System code is
inconsistent with the Export Control Classification Number or the U.S.
Munitions List Category.
`(B) In the case of a dual use item, the license
exception is not available to the country of the ultimate consignee or
to the intermediate or ultimate consignee.
`(C) In the case of defense articles and defense
services, the U.S. Munitions List Category is identified but no license
number, exemption, or exception is correctly identified.
`(4) Fatal Error notices, compliance alerts, or other
warnings are accompanied by references to the applicable regulations
and licensing authorities.
`(d) Definitions- In this section:
`(1) DEFENSE ARTICLES AND DEFENSE SERVICES- The term
`defense articles and defense services' has the meaning given that term
in section 47(7) of the Arms Export Control Act (22 U.S.C. 2794(7)).
`(2) DUAL USE ITEM- The term `dual use item' means an
item subject to export controls under the Export Administration Act of
1979, as continued in effect pursuant to the International Emergency
Economic Powers Act.
`(3) FATAL ERROR NOTICE- The term `fatal error notice'
means a notice that the transaction for which data are entered into the
Automated Export System cannot be completed.
`(4) RESTRICTED PARTY LIST- The term `restricted party
list' means any list maintained by any department or agency of the
United States that is comprised of persons or entities to whom exports
are restricted, including the following:
`(A) The Denied Parties List (or comparable
successor list) of the Department of Commerce under the Export
Administration Regulations (15 C.F.R. 764 Supplement No. 2).
`(B) The Entity List (or comparable successor list)
of the Department of Commerce under the Export Administration
Regulations (15 C.F.R. 774 Supplement No. 4).
`(C) The list of entities under General Order No. 3
of the Department of Commerce under the Export Administration
Regulations (15 C.F.R. 736, Supp. No. 1) (or comparable successor list).
`(D) Those persons and entities with whom
transactions are blocked pursuant to section 203 of the International
Emergency Economic Powers Act (50 U.S.C. 1702).
`(E) A person to whom exports of defense articles
or defense services are restricted under section 38(g)(4) of the Arms
Export Control Act (22 U.S.C. 2778(g)(4)) or section 127.7 of title 22,
Code of Federal Regulations (or successor provision).
`(e) Construction- Nothing in this section shall be
construed to authorize an export because the Automated Export System
accepts the filing of data.'.
SEC. 4. DEFINITIONS.
Chapter 9 of title 13, United States Code, is amended by adding at the end the following new section:
`Sec. 312. Definitions
`(1) AUTOMATED EXPORT SYSTEM- The term `Automated
Export System' means the automated and electronic system for filing
export information established under this chapter.
`(2) FILER- The term `filer' means an individual or
legal entity that is authorized to submit a Shipper's Export
Declaration or Automated Export System record to the Federal Government.
`(3) INTERMEDIARY- The term `intermediary' means a
freight forwarder, a non-vessel operating common carrier (NVOCC), an
ATA (Admission Temporaire/Temporary Admission) Carnet national
guaranteeing association and its service providers, or any other
similar entity as determined by the Secretary.
`(4) Shipper'S EXPORT DECLARATION- The term `Shipper's
Export Declaration' means the export information filed under this
chapter.'.
SEC. 5. CONFORMING AMENDMENTS.
(a) Collection and Publication- Section 301 of title 13,
United States Code, is amended by striking subsection (g) and
redesignating subsection (h) as subsection (g).
(b) Regulations, Orders, etc- Section 306 of title 13,
United States Code, as redesignated by section 3(1) of this Act, is
amended by striking the last sentence and inserting `The Secretary
shall make rules, regulations, and orders, and amendments thereto, in
consultation with the Secretary of Homeland Security.'.
(c) Cross References- Section 309 of title 13, United States Code, as redesignated by section 3(1) of this Act, is amended--
(1) in subsection (b), by striking `304' and inserting `308'; and
(A) in paragraph (1), by striking `304' and inserting `308';
(B) in paragraph (4), by striking `306' and inserting `310'; and
(C) in paragraph (5), by striking `304' and inserting `308'.
(d) Table of Contents- The table of contents for chapter 9 of title 13, United States Code, is amended to read as follows:
`Chapter 9
`301. Collection and publication.
`302. Confidentiality of Shipper's Export Declarations.
`303. Conferences and seminars.
`304. Automated Export System licenses for filers.
`305. Blocking prohibited or restricted exports.
`306. Rules, regulations, and orders.
`307. Secretary of Treasury functions.
`308. Filing export information, delayed filings, penalties for failure to file.
`309. Penalties for unlawful export information activities.
`310. Delegation of functions.
`311. Relationship to general census law.
SEC. 6. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary to carry out the amendments made by this Act.
END
