[The bill was introduced as HR3627, then folded into HR3937, after which it was removed, and thus did not pass. This is the crypto-relevant portion of HR3937, before it was excised.] SEC. 117. EFFECTS ON OTHER ACTS (a) COMMODITY JURISDICTION.- (1) IN GENERAL-Notwithstanding any other provision of law- (A) an item agreed for control on the International Munitions List of COCOM shall be subject to control under the Arms Export Control Act and not under this title; (B) except as provided in paragraphs (2), (3), and (5), an item which is on the International Industrial List of COCOM shall be subject to control under this title and not under the Arms Export Control Act; and (C) no item may be included on both the control index and the United States Munitions List after publication of the lists required under paragraph (4) and resolution of any dispute with respect to such lists under paragraph (5). (2) Exceptions.(A) An item described in subparagraph (B) that is not on the International Munitions List may be subject to control under the Arms Export Control Act- (i)(I) for a period of 9 months after the date on which the United States proposes to COCOM that the item be added to the International Munitions List; and (II) for an additional 9-month period, but only if negotiations in COCOM to add the item to the International Munitions List are continuing- or (ii) if the Secretary of State, in consultation with the Secretary so determines, except that if the Secretary disagrees with the Secretary of State with respect to such item, the item may be subject to control under the Arms Export Control Act only if the disagreement is resolved by the Secretaries or by the President pursuant to the procedures set forth in sub-paragraphs (B) and (C) of paragraph (5). (B) An item referred to in subparagraph (A) is an item that- (i) is specifically designed, developed, configured, adapted, or modified for military or intelligence application; (ii) does not have significant civil applications; and (iii) is not a component the performance capacity and function of which are essentially equivalent to those used for civil applications. (3) PRESIDENTIAL DETERMINATIONS.-An item that is not on the International Munitions List may be subject to control under the Arms Export Control Act if the President- (A) determines that extraordinary circumstances exist affecting the national security of the United States, which require that the item be controlled under the Arms Export Control Act; (B) proposes to COCOM that the item be added to the International Munitions List; and (C) not later than 10 days after making the determination under subparagraph (A), submits a report to the Speaker of the House of Representatives and the President pro tempore of the Senate, describing in detail the reasons for the determination, in appropriate classified form, as necessary. (4) PUBLICATION OF LISTS.- (A)(i) Not later than 3 months after the date of the enactment of this Act, the Secretary shall publish the control index and the Secretary of State shall publish the United States Munitions List, with all revisions that have been made in accordance with this subsection. (ii) Not later than 3 months after the date of the enactment of this Act, the Secretary of State shall publish in a separate list those items remaining subject to control under the Arms Export Control Act under paragraph (2). (iii) The publications required by clauses (i) and (ii) shall be made in the Federal Register. (B) If either the Secretary or the Secretary of State fails to publish a revised list in accordance with subparagraph (A), there shall be excluded from the list of the Secretary that did not so publish a revised list any item included on the list of the Secretary that did so publish a revised list. (5) COMMODITY JURISDICTION DISPUTE RESOLUTION.- (A) Whenever- (i) the Secretary or the Secretary of State receives a request to determine whether an item is subject to control under this title or the Arms Export Control Act, (ii) either Secretary finds that an item is included on both the control index and the United States Munitions List, (iii) an item appearing on the list of one Secretary under paragraph (4)(A)(i) i s considered by the other Secretary to be under the jurisdiction of that other Secretary, or (iv) the Secretary disagrees with the inclusion of an item on the list published under paragraph (4)(A)(ii), the Secretary or the Secretary of State (as the case may be) shall refer the matter and any relevant information to the other Secretary. (B) The 2 Secretaries shall have a period of 15 days following the referral of a matter under subparagraph (A) to resolve any differences with respect to the matter involved. (C) If the 2 Secretaries fail to resolve such differences within that 15-day period, either Secretary may refer the matter to the President, who, not later than 15 days after receiving the referral, shall notify the 2 Secretaries of his determination on the matter in dispute. (D) In the event that either the Secretary or the Secretary of State does not respond to a referral under subparagraph (A) by the other Secretary, the Secretary that did not so respond shall be deemed to concur with the other Secretary on the matter involved. (6) REFERENCES.-For purposes of this subsection, any reference to the "International Munitions List" or the "International Industrial List" includes a reference to any successor list to the International Munitions List or the International Industrial List, as the case may be. (b) EXPORT CONTROLS ON TELECOMMUNICATIONS.- (1) No LICENSE REQUIRED FOR CIVIL END USES.-The Secretary shall not require a validated license for export or authorization for reexport of telecommunications equipment to civil end users for civil end uses in any of the republics of the former Soviet Union, the People's Republic of China, Poland, the Czech Republic, Slovakia, Bulgaria, Romania, Albania, Estonia, Lithuania, Latvia, Cambodia, Laos, Mongolia, or Vietnam. (2) DEFINITIONS.-For purposes of this subsection, the term "telecommunications equipment" includes (A) those items described in the Advisory Notes to Category 5 of the Commerce Control List set forth in part 799 of title 15, Code of Federal Regulations, as of April 4, 1994, that indicate likelihood of approval- (i) for country groups QWY and the People's Republic of China, (ii) only for the People's Republic of China, or (iii) to specified designations in country group Y; and (B) those entries and subentries listed in export control classification numbers 5A02A (except subentries-h and i), 5A03A, 5A04A, 5A05A, 5A06A, 5B01A, 5B024 5C01A, 5D01A, 5D02A, and 5D03A of the Commerce Control List set forth in part 799 of title 15, Code of Federal Regulations, as of April 4, 1994, but not including software designed or modified for the development, production, or use of items controlled under export control classification number 5AOlA of the Commerce Control List. (C) COMPUTERS AND RELATED EQUIPMENT (1) GENERAL RULE - subject to paragraphs (2) and (3), the Secretary shall have exclusive authority to control exports of all computer hardware, software, and technology for information security (including encryption), except that which is specifically designed or modified for military use, including command, control, and intelligence applications. (2) ITEMS NOT REQUIRING LICENSES.- No validated license may be required except pursuant to the Trading With The Enemy Act or the International Emergency Economic Powers Act (but only to the extent that the authority of such Act is not exercised to extend controls imposed under this title), for the export of- (A) any software, including software with encryption capabilities, that is - (i) generally available, as is, and is designed for installation by the purchaser; or (ii) in the public domain or publicly available because it is generally accessible to the interested public in any form; or (B) any computing device solely because it incorporates or employs in any form software (including software with encryption capabilities) exempted from any requirement for a validated license under subparagraph (A). (3) SOFTWARE WITH ENCRYPTION CAPABILITIES.-The Secretary shall authorize the export of software with encryption capabilities for civil end uses (determined on the basis of the criteria described in section 106(c)(2)) in any country to which exports of software of similar capability are permitted for use by financial institutions not controlled in fact by United States persons, unless there is substantial evidence that such software will be- (A) diverted to a military end use or an end use supporting international terrorism; (B) modified for an end use described in subparagraph (A); or (C) reexported without authorization by the United States that is required. (4) DEFINITIONS.-As used in this subsection- (A) the term "generally available" means, in the case of software (including software with encryption capabilities), software that is offered for sale, license, or transfer to any person without restriction through any commercial means, including, but not limited to, over-the-counter retail sales, mail order transactions, phone order transactions, electronic distribution, or sale on approval; (B) the term "as is" means, in the case of software (including software with encryption capabilities), a software program that is not designed, developed, or tailored by the software company for specific purchasers, except that such purchasers may supply certain installation parameters needed by the software program to function properly with the purchaser's computer system and may customize the software program by choosing among options contained in the software program; (C) the term "is designed for installation by the purchaser" means, in the case of software (including software with encryption capabilities) that- (i) the software company intends for the purchaser (including any licensee or transferee), who may not be the actual user of the software program, to install the software program on a computing device and has supplied the necessary instructions to do so, except that the company may also provide telephone help line services for software installation, electronic transmission, or basic operations; and (ii) the software Program is designed for installation by the purchaser without further substantial support by the supplier- (D) the term "computing device" means a device which incorporates one or more microprocessor-based central processing units that can accept, store, process or provide output of data; and (E) the term "computer hardware", when used in conjunction with information security, includes, but is not limited to, computer systems, equipment, application-specific assemblies, modules, and integrated circuits. (d) IN GENERAL-To the extent provided in this title, this title shall be construed to modify, repeal, supersede, and otherwise affect the provisions of any other laws authorizing control over exports of any commodities or technology. (e) COORDINATION OF CONTROLS.-The authority granted under this title and under section 38 of the Arms Export Control Act (22 U.S.C. 2778) shall be exercised in such a manner as to share information regarding the trustworthiness of parties. (f) CIVIL AIRCRAFT EQUIPMENT.-Notwithstanding any other provision of law, any civil aircraft product, or any technology used in a civil aircraft product, that is standard equipment certified or scheduled to be certified by the Federal Aviation Administration and is an integral part of such aircraft, shall be subject to export controls exclusively under this title. (g) NONPROLIFERATION CONTROLS.-The provisions of section 109 shall supersede the procedures published pursuant to section 309(c) of the Nuclear Non-Proliferation Act of 1978 (42 U.S.C. 2139a(c)) to the extent such procedures are inconsistent with the provisions of section 109. (h) AMENDMENTS TO THE INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT.- (1) PRESIDENTIAL AUTHORIZATION.-Section 203(a) of the International Emergency Economic Powers Act (50 U.S.C. 1702(a)) is amended- (A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively, and (B) by inserting after Paragraph (1) the following new paragraph: "(2) The President may prohibit or curtail the exportation of any items on the United States Commodity Control Index that are subject to the jurisdiction of the United States under this title only to the extent provided in, and subject to the criteria of, sections 105, 106, and 114 of the Export Act of 1994, unless such prohibition or curtailment is part of an embargo (as described in section 106(fX1) of the Export Act of 1994) against the country concerned. The preceding sentence shall continue to apply notwithstanding the expiration of the Export Act of 1994.". (2) CONFIDENTIALITY OF INFORMATION.-The International Emergency Economic Powers Act is amended- (A) by redesignating section 208 as section 209; and (B) by inserting after section 207 the following: [Section 208 is now titled "Confidentiality of Information", and is reprinted in the Committee's Report.]