Export Administration Amendments Act of 1985

(Conference report filed in House, H. Rept. 99-180)

Declares that titles I and II of this Act may be cited as the Export Administration Amendments Act of 1985. Title I: Amendments to Export Administration Act of 1979 - Amends the Export Administration Act of 1979 (the Export Administration Act) to amend the congressional findings and declaration of policy with respect to export controls. Declares that it is U.S. policy to: (1) encourage friendly countries to cooperate in restricting the sale of goods and technology that can harm U.S. security; (2) sustain vigorous scientific enterprise by protecting the ability of scholars freely to communicate their research findings; (3) control the export of goods and substances banned or severely restricted in the United States; (4) cooperate with allies and other countries to minimize dependence on imports of critical resources from potential adversaries and in developing alternative supplies of such resources; and (5) continue to object to exceptions to the International Control List for the Soviet Union.

Authorizes the Secretary of Commerce (the Secretary) to require validated licenses (rather than qualified general licenses) authorizing multiple exports, including distribution licenses, comprehensive operations licenses, project licenses, and service supply licenses. Provides that distribution licenses shall authorize exports to distributors in countries other than controlled countries. Sets forth factors to be considered in determining whether to grant a distribution license.

Prohibits using a distribution license or a comprehensive operations license in connection with exports to controlled countries.

Directs the Secretary to establish a control list stating license requirements for exports of goods and technologies to all destinations to which such exports are controlled under the Export Administration Act. (Current law requires the Secretary to establish a commodity control list consisting of any goods or technology subject to export controls.)

Prohibits the imposition of national security or foreign policy export controls on goods or technology if they are available in sufficient quality and quantity from sources outside the United States so that the imposition of export controls would be ineffective. Directs the President to give strong emphasis to bilateral or multilateral negotiations to eliminate foreign availability. Directs the Secretary and the Secretary of Defense to cooperate in gathering and assessing information relating to foreign availability.

Directs the Secretary to keep the public fully informed about changes in export control policy and procedures.

Authorizes the President to prohibit or curtail: (1) reexports of goods and technologies subject to national security export controls; and (2) the transfer of such goods or technologies to embassies and affiliates of proscribed countries.

Deletes the provision which requires the Secretary to explain the denial of an export license application. Deletes the provision which declares that regulations issued to carry out national security export controls shall not be based on the assumption that there are effective safeguards against diversion of critical technologies to military use by countries that pose a threat to U.S. security.

Directs the President to establish as a list of controlled countries those countries designated as communist countries in the Foreign Assistance Act of 1961. Authorizes the President to add or remove a country from such list if the President determines that exports to such country would or would not harm U.S. national security. Sets forth factors the President shall consider in making such determination. Excludes from export license requirements certain exports to countries which are members of the agreement of the Coordinating Committee for Multilateral Export Controls (the Coordinating Committee).

Directs the Secretary to review at least once a year the list of goods subject to national security export controls. Directs the Secretary to publish notice of the review and provide interested parties with an opportunity to comment.

Declares that it is the intent of the Congress to encourage the use of multiple validated export licenses in lieu of individual validated licenses. Prohibits the Secretary from requiring an individual validated export license for replacement parts which are exported to replace on a one-for-one basis parts that were in a good that has been lawfully exported. Requires the Secretary to review periodically the procedures relating to multiple validated export licenses. Authorizes the Secretary to make goods which are subject to national security export controls eligible for a distribution license and other licenses authorizing multiple exports of goods. Makes technology and related goods which are subject to national security export controls eligible for a comprehensive operations license.

Directs the Secretary to establish as one of the criteria for the removal of goods or technology from the list of goods subject to national security export controls the anticipated needs of the military of countries to which exports are controlled for national security purposes.

Deletes as an objective of multilateral export controls negotiations reduction of such controls to a level acceptable to and enforceable by all governments participating in the Coordinating Committee. Adds several new objectives to such negotiations.

Requires any nongovernmental U.S. entity which enters into commercial agreements with the government of a controlled country that is intended to result in the export of unpublished technical data of U.S. origin to report such agreement to the Secretary. Excludes educational institutions from such requirement.

Directs the Secretary to conduct negotiations with other countries, including countries not participating in the Coordinating Committee, to restrict exports of goods or technology that would contribute to the military potential of countries that would be detrimental to U.S. security.

Directs the Secretary, if there is reliable evidence that exports which were subject to national security controls have been diverted to an unauthorized use or consignee: (1) to deny all further exports to or by parties who divert or conspire to divert any goods or technology subject to national security controls to an unauthorized use or consignee; and (2) to take any other necessary steps to deter further unauthorized use of previously exported goods or technology.

Prohibits imposing a national security export control on a good solely because it contains an embedded microprocessor if the microprocessor cannot be used or altered to perform functions other than those it performs in the good in which it is embedded. Permits imposing an export control on such a good only if the functions of the good are such that the good, if exported, would make a significant contribution to the military potential of a country that would be detrimental to U.S. national security.

Directs the Secretary and the Commissioner of Customs, in consultation with the Director of the Federal Bureau of Investigation, to help manufacturers or persons engaged in handling goods or technology subject to national security controls to develop security systems to prevent violations or evasions of such controls.

Requires Federal agencies to keep records of their actions with respect to export license applications or revisions of the list of controlled commodities.

Establishes a National Security Control Office within the office of the Under Secretary of Defense for Policy in order to assist the Secretary of Defense in carrying out responsibilities related to the national security export controls.

Excludes agricultural commodities from the national security export controls.

Requires the Secretary of Defense, in developing the list of militarily critical technologies, to give emphasis to keystone equipment which would reveal or give insight into the design and manufacture of a U.S. military system. Requires such list to include technologies that are not available from sources outside the United States.

Directs the Secretary and the Secretary of Defense to integrate the list of militarily critical technologies into the control list.

Requires the President to resolve any dispute between the Secretaries over whether a good or technology on the list of militarily critical technologies should be integrated into the control list.

Requires that the integrated list include only: (1) goods or technologies which are not possessed by nor available to controlled countries; and (2) goods or technologies for which functionally equivalent goods or technologies are not possessed by nor available to such countries.

Directs the Secretary of Defense to establish a procedure for annually reviewing the goods or technology on the list. Authorizes the Secretary of Defense to add items to the list. Directs the President to resolve disagreements between the Secretaries over whether items should be added to or removed from the list.

Requires the establishment of adequate export controls for militarily critical technology and keystone equipment to be accompanied by suitable reductions in the controls on the products of that technology and equipment.

Directs the Secretary of Defense to report to the Congress within one year of enactment of this Act on the impact that transferring items on the list of militarily critical technologies to controlled countries has had or will have on the military capabilities of those countries.

Directs the Secretary to make a foreign availability determination on the Secretary's own initiative after receiving an allegation of such availability from an export license applicant or upon request of the appropriate technical advisory committee established under the Export Administration Act. Directs the Secretary to accept the applicant's representations made in writing and supported by evidence unless they are contradicted by reliable evidence, expert opinion, or intelligence information. Lists factors to be considered in making such determination.

Requires that the President "actively pursue" rather than "take steps to initiate" negotiations with governments of countries which export goods that are subject to national security export controls.

Establishes in the Department of Commerce an Office of Foreign Availability which shall be responsible for gathering and analyzing information relating to determinations of foreign availability under the Export Administration Act. Requires such information to be made available to the Congress every six months. Requires the Office to be under the direction of the Assistant Secretary of Commerce for Trade Administration in FY 1985 and under the direction of the Under Secretary of Commerce for Export Administration thereafter.

Requires that representatives of the intelligence community participate in the technical advisory committees established under the Export Administration Act. Requires such committees to be consulted on questions relating to actions designed to avoid contributing to the military potential of countries that would be detrimental to U.S. security.

Requires the Secretary to report to the Congress within 90 days on a finding by a technical advisory committee that goods or technology subject to national security export controls are available in foreign countries. Prohibits the Secretary from requiring a validated export license for such goods or technology if, after six months, the foreign availability has not been eliminated. Authorizes the President to extend the validated export license requirement for one year if the President certifies to the Congress that the negotiations to eliminate the foreign availability of such goods or technology are progressing and that the absence of the export control involved would prove detrimental to U.S. national security.

Changes the standard for finding foreign availability of goods subject to national security export controls from "sufficient quality" to "comparable quality" goods.

Provides that the Secretary of Commerce shall exercise the foreign policy export controls in consultation with, among others, the Secretaries of Defense, Agriculture, and the Treasury and the U.S. Trade Representative.

Declares that foreign policy export controls shall apply to transactions undertaken with intent to evade a foreign policy export control even if such foreign policy export control would not otherwise apply to that transaction or activity.

Lists criteria which must be met before the President may impose foreign policy export controls. Directs the President to consider such criteria and the foreign policy consequences of changing the export controls in determining whether to extend the foreign policy export controls in effect on the date of enactment of this Act.

Directs the Secretary, before imposing any foreign policy export controls, to consult with affected U.S. industries and with advisory committees established by the Trade Act of 1974.

Directs the President, when imposing foreign policy export controls, to consult with other countries including countries with which the United States maintains export controls cooperatively.

Authorizes the President to impose, expand, or extend foreign policy export controls only after consultation with the appropriate congressional committee. Requires the President to submit a report to the Congress before imposing, expanding, or extending such controls. Lists information to be included in such report.

Requires the Secretary to present oral testimony annually to the appropriate congressional committees on policies and actions taken to carry out the foreign policy export controls.

Declares that the foreign policy export controls provisions do not authorize export controls on donations of goods that are intended to meet basic human needs.

Declares that such exclusion does not apply to export controls on medicine, medical supplies, or food, except for donations, which are in effect on the date of enactment of this Act.

Requires the President, before extending a foreign policy export control, to evaluate the results of international negotiations to curtail the foreign availability of the goods which shall be subject to the export control. Requires the President to report that evaluation to the Congress. Requires the Secretary, if the negotiating efforts are not successful within a specified time, to take into account the foreign availability of the goods or technology subject to a foreign policy export control. Sets forth procedures to deal with such foreign availability.

Prohibits rescinding a finding that a country supports international terrorism unless the President, at least 30 days before the proposed rescission would take effect, certifies to the Congress that: (1) the country concerned has not provided support for international terrorism during the preceding six month period; and (2) the country concerned has made explicit assurances that it will not support acts of international terrorism in the future.

Requires that any determination of the Secretary with respect to exporting or granting export licenses for crime control instruments shall be made with the concurrence of the Secretary of State.

Requires the Secretary to identify on the control list (currently the commodity control list) which goods or technology and which countries or destinations are subject to which types of foreign policy export controls.

Prohibits the President, unless and until the President makes a specified certification to the Congress, from prohibiting or curtailing through foreign policy export controls, the export or reexport of goods, technology, or other information: (1) in performance of a contract or agreement entered into before the President reports to the Congress the intention to impose export or reexport controls on such goods, technology, or information; or (2) under authorization issued under the Export Administration Act.

Extends certain export controls with respect to South Africa for one year.

Authorizes the President to impose foreign policy export controls with respect to an expanded number of goods or technology if: (1) the President reports to the Congress on the proposed controls; and (2) a law is enacted authorizing such controls. Provides for expedited consideration of a joint resolution authorizing such controls.

Authorizes entities which represent an industry or a substantial segment of an industry which processes metallic materials capable of being recycled to petition the Secretary to monitor exports of such material or impose export controls on such material. Requires such petition to include information demonstrating that specified criteria are satisfied. Requires notice of the petition to be published in the Federal Register. Sets forth information which shall be included in such notice. Sets forth the criteria the Secretary shall use in determining whether to impose monitoring or controls on such materials. Provides for publishing regulations with respect to such monitoring or controls. Authorizes the Secretary to refuse to consider a petition with respect to such materials if a similar petition has been considered in the previous six months. Authorizes the Secretary, under specified conditions, to impose temporary controls after a petition has been filed.

Permits exports of certain domestically produced crude oil only if the President so recommends to the Congress after making and publishing specified findings.

Terminates the short supply export controls on domestically produced crude oil on September 30, 1990.

Requires the President to notify the Congress whenever the President determines that short supply export controls should be imposed on refined petroleum products.

Requires the President to report to the Congress the imposition of any short supply export control on an agricultural commodity. Limits the duration of such a control to one year. Provides that such control shall cease to be effective if the Congress, within 60 days of receipt of the report of such export control, fails to adopt a joint resolution approving such control. Provides for expediting consideration of such a joint resolution. Excludes from such requirement export controls: (1) which are extended under the Export Administration Act if they were approved by the Congress when they were imposed; or (2) which are imposed with respect to a country as part of the prohibition or curtailment of all exports to that country. Prohibits any short supply export control from affecting any contract to harvest unprocessed western red cedar from State lands which was entered into before October 1, 1979, and the performance of which would make red cedar available for export. Prohibits any short supply export controls on any agricultural commodity or on any forest or fishery product from affecting any contract to export entered into before the date on which the controls are imposed.

Decreases the number of days permitted for review of an export license at all stages of the review process. Makes special provisions for reviewing applications for licenses to export goods or technology to member countries of the Coordinating Committee. Requires the Secretary to inform an export license applicant in writing if the Secretary receives questions or negative recommendations from other departments or agencies with respect to the application. Entitles such an applicant to respond in writing to such questions or recommendations and to respond in person to the department or agency raising such questions or recommendations.

Requires the Secretary to inform an export license applicant whose application is denied, among other things: (1) what modifications in or restrictions on the goods or technology for which the license was sought would allow such export to be compatible with export controls; and (2) which Commerce Department personnel will be made reasonably available to the applicant for considerations with regard to such modifications or restrictions.

Requires the Secretary to allow an export license applicant 30 days to respond to a decision denying the license application.

Prohibits the Secretary from returning a license application without action if the license requirements are changed after the application has been submitted. Authorizes the Secretary to request additional information in such a case.

Requires the Secretary to provide a proper classification of a good or technology on the control list within ten days of receiving a request for such classification.

Requires the Secretary to respond within 30 days to an inquiry about the applicability of export license requirements to a proposed export transaction or series of transactions.

Requires the Secretary to submit to the Congress, within 120 days of enactment of this Act, a plan to assist small businesses in the export license application process.

Requires the Secretary to report every three months to specified congressional committees on the number of export license applications which during the preceding three months took more than the prescribed time to process. Requires the Secretary to report additional information with respect to such applications.

Sets forth procedures for reviewing applications for an individual validated license for exports to member countries of the Coordinating Committee.

Imposes penalties: (1) for conspiring or attempting to violate any provision of the Export Administration Act with knowledge that the exports involved will be used for the benefit of, or that the destination or intended destination of the goods or technology involved is, any country to which exports are restricted for national security or foreign policy purposes; (2) on persons possessing goods or technology with intent to export such goods or technology in violation of a national security or foreign policy export control or knowing or having reason to believe that the goods or technology would be so exported; and (3) on persons who take actions with intent to evade the provisions of the Export Administration Act.

Requires consultation with specified congressional committees if an exception to an order issued under the Export Administration Act which revokes the authority of a U.S. person to export goods or technology is to be made.

Requires persons convicted of a national security export control violation to forfeit: (1) any property interest in the goods or tangible items that were the subject of the violation; (2) any property interest in tangible property used in the export or attempt to export that was the subject of the violation; and (3) any property constituting or derived from proceeds obtained as a result of such violation. Prohibits, at the Secretary's discretion, persons with specified prior convictions from being eligible to apply for or use an export license for up to ten years after the conviction.

Authorizes the Commissioner of Customs to make investigations outside the United States in order to enforce the Export Administration Act, the Export Control Act of 1949, or the Export Administration Act of 1969. Provides that any U.S. district court shall have jurisdiction to enforce such Acts.

Authorizes the Secretary to conduct certain investigations outside the United States.

Authorizes the U.S. Customs Service, in the enforcement of the Export Administration Act, to search and seize goods or technology at U.S. ports of entry or exit and at certain places outside the United States. Sets forth actions which U.S. Customs Service officers may take to enforce the Export Administration Act.

Grants the Secretary the responsibility for enforcement of the foreign boycott provisions of the Export Administration Act. Sets forth actions that may be taken in enforcing such provisions.

Limits the amount that the U.S. Customs Service may spend in enforcing the Export Administration Act in FY 1985 and 1986.

Requires the Secretary to publish in the Federal Register the procedures for enforcement of the Export Administration Act.

Requires the Secretary and the Commissioner of Customs, upon request, to share certain licensing and enforcement information.

Sets forth procedures for hearings before an administrative law judge on civil penalties and sanctions for certain violations of the Export Administration Act. Requires such proceedings to be concluded within one year after submission of the complaint. Declares that anyone who for at least two of the ten years immediately preceding enactment of this Act has served as a Commerce Department hearing commissioner shall be considered qualified for appointment as an administrative law judge.

Authorizes the Secretary or the Secretary of the Treasury to issue a temporary denial order, without a hearing, with respect to an export license. Limits the duration of the order to 60 days unless renewed, after notice and opportunity for a hearing, for additional 60 day periods in order to prevent an imminent violation. Lists information to be included in the order. Provides for appeal of the order to an administrative law judge whose determination shall be reviewed by the Secretary.

Authorizes appeals of denials of export licenses. Sets forth appeal procedures.

Directs the Secretary to report annually every license that was approved for exports to controlled countries.

Provides that the Secretary's annual report on the administration of the Export Administration Act need not include an analysis of the time required to process license applications and the number and disposition of export license applications taking more than 90 days to process.

Directs the Secretary to include in each annual report a detailed description of the extent of injury to U.S. industry and the extent of job displacement caused by U.S. exports to controlled countries.

Directs the President to appoint an Under Secretary of Commerce for Export Administration to carry out the functions of the Secretary under the Export Administration Act and such other functions as the Secretary may delegate. Directs the President to designate two Assistant Secretaries of Commerce to assist the Under Secretary.

Authorizes the issuance of regulations to carry out the national security export control provisions only following their submission (for review and comment) to the Secretary of Defense, the Secretary of State, and other appropriate officials.

Requires the Secretary to report to the Congress and to consult with certain technical advisory committees if the Secretary proposes to change regulations issued pursuant to the Export Administration Act.

Changes the definitions of specified terms used in such Act, including "technology" and "export."

Authorizes appropriations for FY 1985 and 1986 to carry out the purposes of the Export Administration Act.

Extends the authority granted by such Act until September 30, 1989.

Amends the Trade Expansion Act of 1962 to authorize the President to impose import controls on persons who violate any national security export control imposed under the Export Administration Act. Authorizes the President to impose import controls on persons who violate a regulation issued under a multilateral agreement to control exports for national security purposes, but only if: (1) negotiations with the parties with jurisdiction over the violation have successfully restored compliance with the regulation involved; (2) the President, after the failure of such negotiations, has notified such parties that the United States intends to impose import controls on persons who violate such regulation; and (3) a majority of parties to the multilateral agreement concur in the proposed import controls or abstain from stating a position on such import controls.

Requires the Secretary to modify the office hours of the Office of Export Administration on at least four days of each workweek to accommodate exporters throughout the United States.

Amends the Foreign Assistance Act of 1961 to require the President to make a specified certification to the Senate Banking Committee before issuing a license for the export of crime control equipment to a country which engages in a consistent pattern of human rights violations.

Prohibits the export of horses by sea from the United States unless the Secretary, in consultation with the Secretary of Agriculture, grants a waiver for such export based on a finding that no horse is being exported for slaughter. Imposes penalties for violations of this prohibition.

Directs the President to: (1) undertake a comprehensive review of the issues concerning possible changes in the existing incentives to produce crude oil from the North Slope of Alaska and possible changes in the existing distribution of such crude oil, as well as the appropriations of continuing existing controls; and (2) develop options and recommendations regarding the production and distribution of such crude oil. Requires the President to consult with specified congressional committees and to report the results of such review to the Congress within nine months of enactment of this Act.

Title II: Export Promotion Programs - Authorizes appropriations for FY 1985 and 1986 to carry out Commerce Department export promotion programs.

Directs the Secretary of Agriculture to report to the Congress, within 90 days of enactment of this Act, on the status of Federal programs relating to the barter or exchange of commodities owned by the Commodity Credit Corporation for materials and products produced in foreign countries.

Authorizes the President: (1) to barter farm commodities for such materials in situations in which sales would otherwise not occur; and (2) to purchase such materials which are produced abroad and acquired by persons in the United States through barter for farm commodities produced in and exported from the United States through normal commercial trade channels. Directs the President to take steps to safeguard existing export markets for farm commodities operating on conventional business terms. Directs the Secretary of Energy to report to the Congress on the effect on energy security and on domestic energy supplies of any acquisitions of petroleum by the Government under this title.

Title III: Nuclear Agreements For Cooperation - Amends the Atomic Energy Act of 1954 to require the Nuclear Proliferation Assessment Statement which the Director of the Arms Control and Disarmament Agency provides the President on proposed agreements of cooperation to include an assessment of the consistency of the text of the agreement with the requirements of the Atomic Energy Act of 1954. Requires the President to submit such statement to the Senate Foreign Relations and the House Foreign Affairs Committees and to consult with such committees on the consistency of the text of the agreement with the requirements of such Act. Requires such committees to each hold hearings on the proposed agreement and submit reports recommending whether the agreement should be approved or disapproved. Declares that such agreement shall not become effective if the Congress adopts a joint (currently concurrent) resolution stating that the Congress does not favor such agreement. Provides that an agreement exempted by the President from specified conditions shall not become effective unless the Congress adopts and there is enacted a joint resolution authorizing such agreement. Provides for expediting the consideration of such a joint resolution.