What changed between these versions
A substantive expansion of the whistleblower program. v2 broadens the categories of individuals excluded from whistleblower status and expands the types of violations that can trigger an award to include property forfeiture. It also introduces a requirement for information to be submitted under penalty of perjury and clarifies fund allocation.
Overview
A handful of substantive changes across several subsections of the newly inserted Section 1761A. · v2 generally expands the scope of exclusions for whistleblowers, broadens the criteria for awards, and refines the administrative processes and fund management, including adding a new requirement for information submission.
The most significant changes in v2 include expanding the definition of who cannot be a whistleblower by adding individuals on the Denied Persons List and Entity List. It also broadens the eligibility for whistleblower awards to include cases leading to property forfeiture, not just fines. A new requirement mandates that information submitted for an award must be under penalty of perjury. Additionally, v2 modifies investigation timelines and whistleblower notification frequencies, and clarifies the allocation of funds within the Export Compliance Accountability Fund.
Major additions
This new subparagraph requires that any information submitted to the Secretary for the purpose of receiving a whistleblower award must be submitted under penalty of perjury.
This addition significantly increases the accountability and veracity expected from whistleblowers, potentially deterring frivolous or false reports by introducing legal consequences for misrepresentation. It aims to ensure the reliability of information leading to enforcement actions.
This new subparagraph specifies that no amounts intended for the United States Victims of State Sponsored Terrorism Fund or the Crime Victims Fund shall be deposited into or credited to the Export Compliance Accountability Fund.
This addition clarifies the funding streams and prevents potential conflicts or diversions of funds designated for other specific victim compensation programs. It ensures that the whistleblower fund does not inadvertently draw from or interfere with established victim funds, providing greater financial clarity and protection for those other programs.
Modifications
This change narrows the pool of eligible whistleblowers by adding individuals found on the Denied Persons List and the Entity List, which are maintained for export control purposes. This means more individuals involved in sanctioned or restricted activities are explicitly barred from receiving whistleblower awards, potentially limiting the sources of information from these specific groups.
Before
v1 excluded Federal employees and individuals on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control (OFAC).
After
v2 expands the exclusions to include Federal employees and individuals on any of the following lists: the OFAC list, the Denied Persons List, and the Entity List.
This modification broadens the circumstances under which a whistleblower can receive an award. By including property forfeiture, it incentivizes reporting violations that may not result in monetary fines but do lead to significant asset seizures, potentially increasing the types of cases pursued and the overall effectiveness of enforcement.
Before
v1 stated that the program would reward individuals whose information led to the imposition of fines.
After
v2 states that the program will reward individuals whose information leads to the imposition of fines OR the forfeiture of any property under section 1761(j).
This change allows whistleblowers to report not only on individuals or entities violating export controls but also directly on the illicit movement of controlled 'items.' This provides a more direct avenue for reporting specific instances of illegal transfers, potentially making the reporting process more precise and actionable for authorities.
Before
v1 required a portal for reporting information relating to 'persons that violate' export control laws.
After
v2 requires a portal for reporting information relating to 'persons that violate' export control laws AND 'items that have been, are being, or are about to be exported, reexported, or in-country transferred in violation' of those laws. It also clarifies that an existing portal can be updated.
This modification provides the Secretary with greater flexibility in managing complex investigations, removing a potentially rigid deadline that might have hindered thoroughness. While it removes a fixed timeframe, it emphasizes urgency, suggesting a balance between speed and comprehensive inquiry. This could lead to longer investigations in some cases but potentially more robust outcomes.
Before
v1 mandated that investigations be concluded within 180 days, unless deemed particularly complex.
After
v2 states that investigations shall be pursued with 'urgency' and concluded within a 'reasonable amount of time,' removing the specific 180-day deadline.
Whistleblowers will receive less frequent updates on the status of their reports and investigations, with the initial notification period extended from 30 to 90 days. The explicit inclusion of confidentiality clauses means that updates may be less detailed, potentially limiting the information shared with whistleblowers to protect ongoing investigations. This could impact whistleblower engagement by reducing immediate feedback.
Before
v1 required the Secretary to update whistleblowers on report status every 30 days, starting 30 days after submission.
After
v2 requires updates every 90 days, starting 90 days after submission, and adds a clause that updates are 'Subject to the confidentiality requirements of section 1761(h)' and may omit 'confirmation of the existence of any specific investigation'.
This change allows for broader sharing of confidential whistleblower information with Federal investigative agencies, in addition to regulatory authorities. This could facilitate more comprehensive and coordinated investigations by involving a wider range of specialized agencies, potentially leading to more effective enforcement actions against export control violations.
Before
v1 allowed confidential whistleblower information to be made available to 'an appropriate regulatory authority'.
After
v2 expands this to include 'an appropriate regulatory authority or Federal investigative agency'.
This modification ensures that an estimated amount for outstanding whistleblower awards is retained in the Fund at the end of each fiscal year, rather than being transferred to the general fund. This provides greater financial stability for the whistleblower incentive program, ensuring funds are available for future awards and reducing the risk of shortfalls.
Before
v1 stated that remaining funds after expenses under paragraph (3) would be transferred to the general fund.
After
v2 states that remaining funds after expenses under paragraph (3), 'excluding the amount estimated for outstanding awards,' would be transferred to the general fund, and updates the reference to deposits from paragraph (3) to paragraph (4).
This change explicitly includes the maintenance of the online whistleblower reporting portal as a funded activity. This ensures dedicated resources for the operational upkeep of a critical component of the whistleblower program, contributing to its long-term functionality and accessibility for potential whistleblowers.
Before
v1 listed 'record keeping' as an activity funded by the Export Compliance Accountability Fund.
After
v2 lists 'record keeping and maintaining the portal under subsection (b)(2)(A)' as an activity funded by the Fund.
The renumbering is a structural change. The addition of subparagraph (B) clarifies the interaction of the Export Compliance Accountability Fund with other established victim funds. This ensures that fines collected for export control violations, which might otherwise be directed to the whistleblower fund, are not diverted if they are specifically designated for other victim compensation programs, thereby protecting the integrity of those other funds.
Before
v1 referred to this section as paragraph (3) and only included a general statement about deposits.
After
v2 renumbers this section to paragraph (4) and adds a new subparagraph (B) which specifies exceptions for other victim funds.
This is a technical correction to align the reference with the renumbering of the 'Deposits and credits' paragraph in subsection (d). It has no operative policy impact beyond maintaining internal consistency within the bill.
Before
v1 referenced deposits under paragraph (3) of subsection (d).
After
v2 references deposits under paragraph (4) of subsection (d).
This is a technical correction to align the reference in the Victims of Crime Act with the renumbered 'Export Compliance Accountability Fund' section in the Export Control Reform Act. It ensures correct cross-referencing and has no independent policy impact.
Before
v1 referenced the Export Compliance Accountability Fund pursuant to section 1761A(e) of the Export Control Reform Act of 2018.
After
v2 references the Export Compliance Accountability Fund pursuant to section 1761A(d) of the Export Control Reform Act of 2018.
Scope
Meaningful expansion or narrowing — Changes are concentrated within the newly inserted Section 1761A, specifically affecting definitions, the incentive program's operational details, and the fund management provisions. — v2 represents a refinement within the same policy direction, aiming to strengthen and clarify the whistleblower program rather than altering its fundamental purpose. The changes primarily adjust eligibility, award triggers, administrative processes, and fund mechanics. — The changes primarily interact within the new Section 1761A, refining its internal mechanics. The updated cross-references ensure consistency with the Victims of Crime Act, but the core policy changes are self-contained within the new whistleblower provisions.
Impact analysis
Potential whistleblowers (non-Federal employees)
Negative for those newly excluded, procedural for those still eligible (requiring perjury statement).
The pool of eligible whistleblowers is narrowed by adding individuals on the Denied Persons List and Entity List to the exclusions. Additionally, a new requirement mandates that information be submitted under penalty of perjury to be eligible for an award.
Whistleblowers providing information leading to property forfeiture
Positive, as it increases opportunities for awards.
Their information can now lead to an award, whereas v1 only specified fines as the trigger.
Whistleblowers reporting on illicit 'items' movement
Positive, by clarifying reporting avenues.
The online portal explicitly allows reporting on 'items' being illegally exported, reexported, or in-country transferred, providing a more direct reporting mechanism for such violations.
Whistleblowers awaiting updates on their reports
Negative, due to less frequent and potentially less detailed communication.
Notification frequency is reduced from every 30 days to every 90 days, and updates may be less detailed due to explicit confidentiality clauses.
Federal investigative agencies
Positive, by enhancing information sharing capabilities.
They are now explicitly included among the entities to which confidential whistleblower information can be made available.
Export Compliance Accountability Fund
Positive, by ensuring resources for awards and operations.
The fund is now explicitly allowed to retain estimated outstanding awards at the end of the fiscal year, and its scope of funded activities includes maintaining the online portal. It also has clarified exceptions regarding other victim funds.
United States Victims of State Sponsored Terrorism Fund and Crime Victims Fund
Positive, by safeguarding their designated funds.
Explicit protection is added to ensure that funds designated for these programs are not diverted to the Export Compliance Accountability Fund.