Public Law 105-261, Strom Thurmond NDAA for FY 1999, Sections 1511-1522
Subtitle B--Satellite Export Controls
SEC. 1511. <<NOTE: 22 USC 2778 note.>> SENSE OF CONGRESS.
It is the sense of Congress that--
(1) United States business interests must not be placed
above United States national security interests;
(2) United States foreign policy and the policies of the
United States regarding commercial relations with other
countries should affirm the importance of observing and adhering
to the Missile Technology Control Regime (MTCR);
(3) the United States should encourage universal observance
of the Guidelines to the Missile Technology Control Regime;
(4) the exportation or transfer of advanced communication
satellites and related technologies from United States sources
to foreign recipients should not increase the risks to the
national security of the United States;
(5) due to the military sensitivity of the technologies
involved, it is in the national security interests of the United
States that United States satellites and related items be
subject to the same export controls that apply under United
States law and practices to munitions;
(6) the United States should not issue any blanket waiver of
the suspensions contained in section 902 of the Foreign
Relations Authorization Act, Fiscal Years 1990 and 1991 (Public
Law 101-246), regarding the export of satellites of United
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States origin intended for launch from a launch vehicle owned by
the People's Republic of China;
(7) the United States should pursue policies that protect
and enhance the United States space launch industry; and
(8) the United States should not export to the People's
Republic of China missile equipment or technology that would
improve the missile or space launch capabilities of the People's
Republic of China.
SEC. 1512. <<NOTE: 22 USC 2778 note.>> CERTIFICATION OF EXPORTS OF
MISSILE EQUIPMENT OR TECHNOLOGY TO CHINA.
The President shall certify to the Congress at least 15 days in
advance of any export to the People's Republic of China of missile
equipment or technology (as defined in section 74 of the Arms Export
Control Act (22 U.S.C. 2797c)) that--
(1) such export is not detrimental to the United States
space launch industry; and
(2) the missile equipment or technology, including any
indirect technical benefit that could be derived from such
export, will not measurably improve the missile or space launch
capabilities of the People's Republic of China.
SEC. 1513. <<NOTE: 22 USC 2778 note.>> SATELLITE CONTROLS UNDER THE
UNITED STATES MUNITIONS LIST.
(a) Control of Satellites on the United States Munitions List.--
Notwithstanding any other provision of law, all satellites and related
items that are on the Commerce Control List of dual-use items in the
Export Administration Regulations (15 CFR part 730 et seq.) on the date
of the enactment of this Act shall be transferred to the United States
Munitions List and controlled under section 38 of the Arms Export
Control Act (22 U.S.C. 2778).
(b) Defense Trade Controls Registration Fees.--Section 45 of the
State Department Basic Authorities Act of 1956 (22 U.S.C. 2717) is
amended--
(1) in subsection (a)--
(A) by striking out ``$700,000'' and inserting in
lieu thereof ``100 percent''; and
(B) by striking out ``(a) Defense Trade Controls
Registration Fees.--''; and
(2) by striking out subsection (b).
(c) Effective Date.--(1) Subsection (a) shall take effect on March
15, 1999, and shall not apply to any export license issued before such
effective date or to any export license application made under the
Export Administration Regulations before such effective date.
(2) The amendments made by subsection (b) shall be effective as of
October 1, 1998.
(d) Report.--Not later than January 1, 1999, the Secretary of State,
in consultation with the Secretary of Defense and the Secretary of
Commerce, shall submit to Congress a report containing--
(1) a detailed description of the plans of the Department of
State to implement the requirements of this section, including
any organizational changes that are required and any Executive
orders or regulations that may be required;
(2) an identification and explanation of any steps that
should be taken to improve the license review process for
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exports of the satellites and related items described in
subsection (a), including measures to shorten the timelines for
license application reviews, and any measures relating to the
transparency of the license review process and dispute
resolution procedures;
(3) an evaluation of the adequacy of resources available to
the Department of State, including fiscal and personnel
resources, to carry out the additional activities required by
this section; and
(4) any recommendations for additional actions, including
possible legislation, to improve the export licensing process
under the Arms Export Control Act for the satellites and related
items described in subsection (a).
SEC. 1514. <<NOTE: 22 USC 2778 note.>> NATIONAL SECURITY CONTROLS ON
SATELLITE EXPORT LICENSING.
(a) Actions by the President.--Notwithstanding any other provision
of law, the President shall take such actions as are necessary to
implement the following requirements for improving national security
controls in the export licensing of satellites and related items:
(1) Mandatory technology control plans.--All export licenses
shall require a technology transfer control plan approved by the
Secretary of Defense and an encryption technology transfer
control plan approved by the Director of the National Security
Agency.
(2) Mandatory monitors and reimbursement.--
(A) Monitoring of proposed foreign launch of
satellites.--In any case in which a license is approved
for the export of a satellite or related items for
launch in a foreign country, the Secretary of Defense
shall monitor all aspects of the launch in order to
ensure that no unauthorized transfer of technology
occurs, including technical assistance and technical
data. The costs of such monitoring services shall be
fully reimbursed to the Department of Defense by the
person or entity receiving such services. All
reimbursements received under this subparagraph shall be
credited to current appropriations available for the
payment of the costs incurred in providing such
services.
(B) Contents of monitoring.--The monitoring under
subparagraph (A) shall cover, but not be limited to--
(i) technical discussions and activities,
including the design, development, operation,
maintenance, modification, and repair of
satellites, satellite components, missiles, other
equipment, launch facilities, and launch vehicles;
(ii) satellite processing and launch
activities, including launch preparation,
satellite transportation, integration of the
satellite with the launch vehicle, testing and
checkout prior to launch, satellite launch, and
return of equipment to the United States;
(iii) activities relating to launch failure,
delay, or cancellation, including post-launch
failure investigations; and
(iv) all other aspects of the launch.
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(3) Mandatory licenses for crash-investigations.--In the
event of the failure of a launch from a foreign country of a
satellite of United States origin--
(A) the activities of United States persons or
entities in connection with any subsequent investigation
of the failure are subject to the controls established
under section 38 of the Arms Export Control Act,
including requirements for licenses issued by the
Secretary of State for participation in that
investigation;
(B) officials of the Department of Defense shall
monitor all activities associated with the investigation
to insure against unauthorized transfer of technical
data or services; and
(C) the Secretary of Defense shall establish and
implement a technology transfer control plan for the
conduct of the investigation to prevent the transfer of
information that could be used by the foreign country to
improve its missile or space launch capabilities.
(4) Mandatory notification and certification.--All
technology transfer control plans for satellites or related
items shall require any United States person or entity involved
in the export of a satellite of United States origin or related
items to notify the Department of Defense in advance of all
meetings and interactions with any foreign person or entity
providing launch services and require the United States person
or entity to certify after the launch that it has complied with
this notification requirement.
(5) Mandatory intelligence community review.--The Secretary
of Commerce and the Secretary of State shall provide to the
Secretary of Defense and the Director of Central Intelligence
copies of all export license applications and technical
assistance agreements submitted for approval in connection with
launches in foreign countries of satellites to verify the
legitimacy of the stated end-user or end-users.
(6) Mandatory sharing of approved licenses and agreements.--
The Secretary of State shall provide copies of all approved
export licenses and technical assistance agreements associated
with launches in foreign countries of satellites to the
Secretaries of Defense and Energy, the Director of Central
Intelligence, and the Director of the Arms Control and
Disarmament Agency.
(7) Mandatory notification to congress on licenses.--Upon
issuing a license for the export of a satellite or related items
for launch in a foreign country, the head of the department or
agency issuing the license shall so notify Congress.
(8) Mandatory reporting on monitoring activities.--The
Secretary of Defense shall provide to Congress an annual report
on the monitoring of all launches in foreign countries of
satellites of United States origin.
(9) Establishing safeguards program.--The Secretary of
Defense shall establish a program for recruiting, training, and
maintaining a staff dedicated to monitoring launches in foreign
countries of satellites and related items of United States
origin.
(b) Exception.--This section shall not apply to the export of a
satellite or related items for launch in, or by nationals of,
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a country that is a member of the North Atlantic Treaty Organization or
that is a major non-NATO ally of the United States.
(c) Effective <<NOTE: President.>> Date.--The President shall take
the actions required by subsection (a) not later than 45 days after the
date of the enactment of this Act.
SEC. 1515. <<NOTE: 22 USC 2778 note.>> REPORT ON EXPORT OF SATELLITES
FOR LAUNCH BY PEOPLE'S REPUBLIC OF CHINA.
(a) Requirement for Report.--Each report to Congress submitted
pursuant to subsection (b) of section 902 of the Foreign Relations
Authorization Act, Fiscal Years 1990 and 1991 (22 U.S.C. 2151 note;
Public Law 101-246) to waive the restrictions contained in subsection
(a) of that section on the export to the People's Republic of China of
any satellite of United States origin or related items shall be
accompanied by a detailed justification setting forth the following:
(1) A detailed description of all militarily sensitive
characteristics integrated within, or associated with, the
satellite.
(2) An estimate of the number of United States civilian
contract personnel expected to be needed in country to carry out
the proposed satellite launch.
(3)(A) A detailed description of the United States
Government's plan to monitor the proposed satellite launch to
ensure that no unauthorized transfer of technology occurs,
together with an estimate of the number of officers and
employees of the United States that are expected to be needed in
country to carry out monitoring of the proposed satellite
launch; and
(B) the estimated cost to the Department of Defense of
monitoring the proposed satellite launch and the amount of such
cost that is to be reimbursed to the department.
(4) The reasons why the proposed satellite launch is in the
national security interest of the United States.
(5) The impact of the proposed export on employment in the
United States, including the number of new jobs created in the
United States, on a State-by-State basis, as a direct result of
the proposed export.
(6) The number of existing jobs in the United States that
would be lost, on a State-by-State basis, as a direct result of
the proposed export not being licensed.
(7) The impact of the proposed export on the balance of
trade between the United States and the People's Republic of
China and on reducing the current United States trade deficit
with the People's Republic of China.
(8) The impact of the proposed export on the transition of
the People's Republic of China from a nonmarket economy to a
market economy and the long-term economic benefit to the United
States.
(9) The impact of the proposed export on opening new markets
to United States-made products through the purchase by the
People's Republic of China of United States-made goods and
services not directly related to the proposed export.
(10) The impact of the proposed export on reducing acts,
policies, and practices that constitute significant trade
barriers to United States exports or foreign direct investment
in the People's Republic of China by United States nationals.
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(11) The increase that will result from the proposed export
in the overall market share of the United States for goods and
services in comparison to Japan, France, Germany, the United
Kingdom, and Russia.
(12) The impact of the proposed export on the willingness of
the People's Republic of China to modify its commercial and
trade laws, practices, and regulations to make United States-
made goods and services more accessible to that market.
(13) The impact of the proposed export on the willingness of
the People's Republic of China to reduce formal and informal
trade barriers and tariffs, duties, and other fees on United
States-made goods and services entering that country.
(b) Militarily Sensitive Characteristics Defined.--In this section,
the term ``militarily sensitive characteristics'' includes antijamming
capability, antennas, crosslinks, baseband processing, encryption
devices, radiation-hardened devices, propulsion systems, pointing
accuracy, kick motors, and other such characteristics as are specified
by the Secretary of Defense.
SEC. 1516. <<NOTE: 22 USC 2778 note.>> RELATED ITEMS DEFINED.
In this subtitle, the term ``related items'' means the satellite
fuel, ground support equipment, test equipment, payload adapter or
interface hardware, replacement parts, and non-embedded solid propellant
orbit transfer engines described in the report submitted to Congress by
the Department of State on February 6, 1998, pursuant to section 38(f )
of the Arms Export Control Act (22 U.S.C. 2778(f )).
Subtitle C--Other Export Control Matters
SEC. 1521. AUTHORITY FOR EXPORT CONTROL ACTIVITIES OF THE DEPARTMENT OF
DEFENSE.
(a) Functions of the Under Secretary for Policy.--Section 134(b) of
title 10, United States Code, is amended by adding at the end the
following new paragraph:
``(3) Subject to the authority, direction, and control of the
Secretary of Defense, the Under Secretary shall have responsibility for
supervising and directing activities of the Department of Defense
relating to export controls.''.
(b) Establishment of Deputy Under Secretary for Technology Security
Policy.--(1) Chapter 4 of title 10, United States Code, is amended by
inserting after section 134a the following new section:
``Sec. 134b. Deputy Under Secretary of Defense for Technology Security
Policy
``(a) There is in the Office of the Under Secretary of Defense for
Policy a Deputy Under Secretary of Defense for Technology Security
Policy.
``(b) The Deputy Under Secretary serves as the Director of the
Defense Technology Security Administration (or any successor
organization charged with similar responsibilities).
``(c) The principal duties of the Deputy Under Secretary are--
``(1) assisting the Under Secretary of Defense for Policy in
supervising and directing the activities of the Department of
Defense relating to export controls; and
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``(2) assisting the Under Secretary of Defense for Policy in
developing policies and positions regarding the appropriate
export control policies and procedures that are necessary to
protect the national security interests of the United States.
``(d) The Deputy Under Secretary shall perform such additional
duties and exercise such authority as the Secretary of Defense may
prescribe.''.
(2) The table of sections at the beginning of such chapter is
amended by inserting after the item relating to section 134a the
following new item:
``134b. Deputy Under Secretary of Defense for Technology Security
Policy.''.
<<NOTE: 10 USC 134 note.>> (c) Time for Implementation.--The
Secretary of Defense shall complete the actions necessary to implement
the amendment made by subsection (a) and to establish the office of
Deputy Under Secretary of Defense for Technology Security Policy in
accordance with section 134b of title 10, United States Code, as added
by subsection (b), not later than 60 days after the date of the
enactment of this Act.
<<NOTE: 10 USC 134 note.>> (d) Report.--Not later than 90 days
after the date of the enactment of this Act, the Secretary of Defense
shall submit to the Committee on Armed Services of the Senate and the
Committee on National Security of the House of Representatives a report
on the plans of the Secretary for implementing the amendments made by
subsections (a) and (b). The report shall include the following:
(1) A description of any organizational changes that are to
be made within the Department of Defense to implement those
amendments.
(2) A description of the role of the Chairman of the Joint
Chiefs of Staff in the export control activities of the
Department of Defense after those subsections are implemented,
together with a discussion of how that role compares to the
Chairman's role in those activities before the implementation of
those subsections.
SEC. 1522. <<NOTE: 50 USC app. 2404 note.>> RELEASE OF EXPORT
INFORMATION BY DEPARTMENT OF COMMERCE TO OTHER AGENCIES FOR
PURPOSE OF NATIONAL SECURITY ASSESSMENT.
(a) Release of Export Information.--The Secretary of Commerce shall,
upon the written request of an official specified in subsection (c),
transmit to that official any information relating to exports that is
held by the Department of Commerce and is requested by that official for
the purpose of assessing national security risks. The Secretary shall
transmit such information within 10 business days after receiving such a
request.
(b) Nature of Information.--The information referred to in
subsection (a) includes information concerning--
(1) export licenses issued by the Department of Commerce;
(2) exports that were carried out under an export license
issued by the Department of Commerce; and
(3) exports from the United States that were carried out
without an export license.
(c) Requesting Officials.--The officials referred to in subsection
(a) are the Secretary of State, the Secretary of Defense, the Secretary
of Energy, and the Director of Central Intelligence. Each of those
officials may delegate to any other official within
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their respective departments and agency the authority to request
information under subsection (a).
