Sec. 5. Export prohibition and certification system and international agreements
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It shall be unlawful for any person to export or otherwise transport from the United States any Item Prohibited from Exportation. Any person who violates paragraph
(1)shall be fined in accordance with section 3571 of title 18, United States Code, and shall be imprisoned for not more than 1 year for a first violation and not more than 10 years for a second or subsequent violation. No Item Requiring Export Certification may be exported from the United States without first having obtained an export certification in accordance with this subsection. The Secretary shall, in consultation with Indian Tribes, publish in the Federal Register a notice that includes— a description of characteristics typical of Items Requiring Export Certification, which shall be sufficiently specific and precise to ensure an export certification is required only of such Items Requiring Export Certification and that fair notice is given to exporters and other persons as to which items require an export certification under this paragraph; and a description of characteristics typical of items that do not qualify as Items Requiring Export Certification and therefore do not require an export certification under this paragraph, which shall— clarify that objects made for commercial purposes generally do not qualify as an Item Requiring Export Certification; and clarify that in some circumstances receipts or certifications issued by Indian Tribes may be used as evidence to demonstrate a particular item does not qualify as an Item Requiring Export Certification. An Item Requiring Export Certification is not an Item Prohibited from Exportation and is therefore eligible for an export certification if it is not under ongoing Federal investigation and it— was not obtained within the time and location provenance parameters of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code, and the export of the Item Requiring Export Certification would not otherwise violate any other provision of law; was excavated or removed pursuant to a permit issued under section 4 of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470cc ) or section 320302 of title 54, United States Code, or in compliance with section 3(c) of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002(c) ), if the permit for excavation or removal authorizes export, and the export of the Item Requiring Export Certification would not otherwise violate any other provision of law; or is accompanied by written confirmation from an Indian Tribe that the exporter has a right of possession, as defined in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ), or that the Indian Tribe has relinquished title or control, as provided for in section 3 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002 ), of the Item Requiring Export Certification, and the export of the Item Requiring Export Certification would not otherwise violate any other provision of law. With respect to each Item Requiring Export Certification to be exported from the United States, the exporter shall make an attestation (on an attestation form described in subclause (III)) that, to the best of the exporter's knowledge and belief, the exporter is not exporting an Item Prohibited from Exportation. Any willful or knowing false statement made on an attestation form under subclause
(I)shall— subject the exporter to criminal penalties pursuant to section 1001 of title 18, United States Code; and prohibit the exporter from receiving an export certification for any Item Requiring Export Certification through attestation alone in the future. An attestation form shall describe and provide pictures of each Item Requiring Export Certification. The Secretary shall consult with Indian Tribes in designing the attestation form. If attestation alone is no longer permitted or an export certification is delayed or denied, notice shall be given to the exporter, who may provide the Secretary with evidence to establish that the Item Requiring Export Certification is not an Item Prohibited from Exportation. The Secretary shall make each export certification application available to Indian Tribes via a secure website immediately after each export certification application has been submitted. The Secretary, in consultation with Indian Tribes, may issue an export certification for an Item Requiring Export Certification that is not an Item Prohibited from Exportation and is therefore eligible for export. If credible evidence is provided that indicates an item that received an export certification qualifies as an Item Prohibited from Exportation, the Secretary may immediately revoke the export certification. In making a determination about whether revocation is warranted, Indian Tribes shall be consulted. Any Item Requiring Export Certification that an exporter attempts to export without an export certification shall be subject to seizure by the U.S. Customs and Border Protection. An item found to qualify as an Item Prohibited from Exportation shall be forfeited, consistent with chapter 46 of title 18, United States Code, to the Federal Government and repatriated to the Indian Tribe pursuant to the process provided for under the law under which it is found to be obtained in violation. An Item Requiring Export Certification that is seized under subparagraph
(A)for which credible evidence does not establish within 60 days that it is an Item Prohibited from Exportation shall be returned to the exporter but shall not receive an export certification at that time. If the Secretary denies an export certification or seizes an Item Requiring Export Certification under this subsection, the exporter shall upon request be given a hearing on the record under such rules and regulations as the Secretary may promulgate. Reasonable fees may be collected for the processing of export certification applications under this subsection. The Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, shall require all appropriate personnel of U.S. Customs and Border Protection to participate in training to identify Items Requiring Export Certification for purposes of this Act and the amendment made by this Act. Indian Tribes shall be consulted in developing and delivering such trainings. Whoever seeks to export an Item Requiring Export Certification without a required export certification but voluntarily returns it to the Indian Tribe with a likely cultural affiliation prior to active Federal investigation shall not be prosecuted for such violation with respect to the Item Requiring Export Certification. The exporter’s application to obtain an export certification does not qualify as triggering an active Federal investigation. The President is authorized to request from a State Party agreements or provisional measures pursuant to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)), subject to the limitations of Articles 6 and 9, under which the President may request the return from the State Party of Items Prohibited from Exportation. All rules and regulations necessary and appropriate to carry out the provisions of this section shall be prescribed by the Secretary and shall be made in consultation with Indian Tribes.
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Sec. 5
Export prohibition and certification system and international agreements
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