Congressional Record: Proceedings and Debates of the 107th Congress, First Session, Volume 147, Part 12 Page: 16,566
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CONGRESSIONAL RECORD-SENATE
September 6, 2001
the concurrence of the Secretary of State,
and
(2) any determination by the Secretary to
approve or deny an export license applica-
tion to export crime control or detection in-
struments or equipment shall be made in
concurrence with the recommendations of
the Secretary of State submitted to the Sec-
retary with respect to the application pursu-
ant to section 401 of this Act,
except that, if the Secretary does not agree
with the Secretary of State with respect to
any determination under paragraph (1) or (2),
the matter shall be referred to the President
for resolution.
(b) EXCEPTION-Except as herein provided,
the provisions of this section shall not apply
with respect to exports to countries that are
members of the North Atlantic Treaty Orga-
nization or to Japan, Australia, or New Zea-
land, or to such other countries as the Presi-
dent shall designate consistent with the pur-
poses of this section and section 502B of the
Foreign Assistance Act of 1961 (22 U.S.C.
2304). The provisions of subsection (a) shall
apply with respect to exports of any of the
items identified in subsection (c).
(c) REPORT-Notwithstanding the provi-
sions of section 602 or any other confiden-
tiality requirements, the Secretary shall in-
clude in the annual report submitted to Con-
gress pursuant to section 701 a report de-
scribing the aggregate number of licenses ap-
proved during the preceding calendar year
for the export of any items listed in the fol-
lowing paragraphs identified by country and
control list number:
(1) Serrated thumbcuffs, leg irons,
thumbscrews, and electro-shock stun belts.
(2) Leg cuffs, thumbcuffs, shackle boards,
restraint chairs, straitjackets, and plastic
handcuffs.
(3) Stun guns, shock batons, electric cattle
prods, immobilization guns and projectiles,
other than equipment used exclusively to
treat or tranquilize animals and arms de-
signed solely for signal, flare, or saluting
use.
(4) Technology exclusively for the develop-
ment or production of electro-shock devices.
(5) Pepper gas weapons and saps.
(6) Any other item or technology the Sec-
retary determines is a specially designed in-
strument of torture or is especially suscep-
tible to abuse as an instrument of torture.
TITLE TV-PROCEDURES FOR EXPORT LI-
CENSES AND INTERAGENCY DISPUTE
RESOLUTION
SEC. 401. EXPORT LICENSE PROCEDURES.
(a) RESPONSIBILITY OF THE SECRETARY.-
(1) IN GENERAL-All applications for a li-
cense or other authorization to export a con-
trolled item shall be filed in such manner
and include such information as the Sec-
retary may, by regulation, prescribe.
(2) PROCEDURES-In guidance and regula-
tions that implement this section, the Sec-
retary shall describe the procedures required
by this section, the responsibilities of the
Secretary and of other departments and
agencies in reviewing applications, the
rights of the applicant, and other relevant
matters affecting the review of license appli-
cations.
(3) CALCULATION OF PROCESSING TIMES-In
calculating the processing times set forth in
this title, the Secretary shall use calendar
days, except that if the final day for a re-
quired action falls on a weekend or holiday,
that action shall be taken no later than the
following business day.
(4) CRITERIA FOR EVALUATING APPLICA-
TIONS-In determining whether to grant an
application to export a controlled itemunder this Act, the following criteria shall
be considered:
(A) The characteristics of the controlled
item.
(B) The threat to-
(i) the national security interests of the
United States from items controlled under
title II of this Act; or
(ii) the foreign policy of the United States
from items controlled under title III of this
Act.
(C) The country tier designation of the
country to which a controlled item is to be
exported pursuant to section 203.
(D) The risk of export diversion or misuse
by-
(i) the exporter;
(ii) the method of export;
(iii) the end-user;
(iv) the country where the end-user is lo-
cated; and
(v) the end-use.
(E) Risk mitigating factors including, but
not limited to-
(i) changing the characteristics of the con-
trolled item;
(ii) after-market monitoring by the ex-
porter; and
(iii) post-shipment verification.
(b) INITIAL SCREENING.-
(1) UPON RECEIPT OF APPLICATION-Upon re-
ceipt of an export license application, the
Secretary shall enter and maintain in the
records of the Department information re-
garding the receipt and status of the applica-
tion.
(2) INITIAL PROCEDURES.-
(A) IN GENERAL-Not later than 9 days
after receiving any license application, the
Secretary shall-
(i) contact the applicant if the application
is improperly completed or if additional in-
formation is required, and hold the applica-
tion for a reasonable time while the appli-
cant provides the necessary corrections or
information, and such time shall not be in-
cluded in calculating the time periods pre-
scribed in this title; and
(ii) upon receipt of completed application-
(I) ensure that the classification stated on
the application for the export items is cor-
rect.;
(II') refer the application, through the use
of a common data-base or other means, and
all information submitted by the applicant,
and all necessary recommendations and
analyses by the Secretary to the Secretary
of Defense, the Secretary of State, and the
heads of any other departments and agencies
the Secretary considers appropriate; or
(III) return the application if a license is
not required.
(B) REFERRAL NOT REQUIRED-In the event
that the head of a department or agency de-
termines that certain types of applications
need not be referred to the department or
agency, such department or agency head
shall notify the Secretary of the specific
types of such applications that the depart-
ment or agency does not wish to review.
(3) WITHDRAWAL OF APPLICATION-An appli-
cant may, by written notice to the Sec-
retary, withdraw an application at any time
before final action.
(c) ACTION BY OTHER DEPARTMENTS AND
AGENCIES.-
(1) REFERRAL TO OTHER AGENCIES-The
Secretary shall promptly refer a license ap-
plication to the departments and agencies
under subsection (b) to make recommenda-
tions and provide information to the Sec-
retary.
(2) RESPONSIBILITY OF REFERRAL DEPART-
MENTS AND AGENCIES-The Secretary of De-fense, the Secretary of State, and the heads
of other reviewing departments and agencies
shall take all necessary actions in a prompt
and responsible manner on an application.
Each department or agency reviewing an ap-
plication under this section shall establish
and maintain records properly identifying
and monitoring the status of the matter re-
ferred to the department or agency.
(3) ADDITIONAL INFORMATION REQUESTS.-
Each department or agency to which a li-
cense application is referred shall specify to
the Secretary any information that is not in
the application that would be required for
the department or agency to make a deter-
mination with respect to the application,
and the Secretary shall promptly request
such information from the applicant. The
time that may elapse between the date the
information is requested by that department
or agency and the date the information is re-
ceived by that department or agency shall
not be included in calculating the time peri-
ods prescribed in this title.
(4) TIME PERIOD FOR ACTION BY REFERRAL
DEPARTMENTS AND AGENCIES-Within 30 days
after the Secretary refers an application
under this section, each department or agen-
cy to which an application has been referred
shall provide the Secretary with a rec-
ommendation either to approve the license
or to deny the license. A recommendation
that the Secretary deny a license shall in-
clude a statement of reasons for the rec-
ommendation that are consistent with the
provisions of this title, and shall cite both
the specific statutory and regulatory basis
for the recommendation. A department or
agency that fails to provide a recommenda-
tion in accordance with this paragraph with-
in that 30-day period shall be deemed to have
no objection to the decision of the Secretary
on the application.
(d) ACTION BY THE SECRETARY-Not later
than 30 days after the date the application is
referred, the Secretary shall-
(1) if there is agreement among the referral
departments and agencies to issue or deny
the license-
(A) issue the license and ensure all appro-
priate personnel in the Department (includ-
ing the Office of Export Enforcement) are
notified of all approved license applications;
or.
(B) notify the applicant of the intention to
deny the license; or
(2) if there is no agreement among the re-
ferral departments and agencies, notify the
applicant that the application is subject to
the interagency dispute resolution process
provided for in section 402.
(e) CONSEQUENCES OF APPLICATION DE-
NIAL.-
(1) IN GENERAL-If a determination is
made to deny a license, the applicant shall
be informed in writing, consistent with the
protection of intelligence information
sources and methods, by the Secretary of-
(A) the determination;
(B) the specific statutory and regulatory
bases for the proposed denial;
(C) what, if any, modifications to, or re-
strictions on, the items for which the license
was sought would allow such export to be
compatible with export controls imposed
under this Act, and which officer or em-
ployee of the Department would be in a posi-
tion to discuss modifications or restrictions
with the applicant and the specific statutory
and regulatory bases for imposing such
modifications or restrictions;
(D) to the extent consistent with the na-
tional security and foreign policy interests16566
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United States. Congress. Congressional Record: Proceedings and Debates of the 107th Congress, First Session, Volume 147, Part 12, book, 2001; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc31045/m1/95/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.