(2) EFFECTIVE
ENFORCEMENT
AND
COMPLI-
ANCE.—The regime promotes enforcement and com-
pliance with the regime’s rules and guidelines.
(3) PUBLIC
UNDERSTANDING.—The regime
makes an effort to enhance public understanding of
the purpose and procedures of the multilateral ex-
port control regime.
(4) 
EFFECTIVE
IMPLEMENTATION
PROCE-
DURES.—The multilateral export control regime has
procedures for the uniform and consistent interpre-
tation and implementation of its rules and guide-
lines.
(5) ENHANCED
COOPERATION
WITH
REGIME
NONMEMBERS.—There is agreement among the
members of the multilateral export control regime
to—
(A) cooperate with governments outside
the regime to restrict the export of items con-
trolled by such regime; and
(B) establish an ongoing mechanism in the
regime to coordinate planning and implementa-
tion of export control measures related to such
cooperation.
(6) PERIODIC HIGH-LEVEL MEETINGS.—There
are regular periodic meetings of high-level represent-
atives of the governments of members of the multi-
lateral export control regime for the purpose of co-
ordinating export control policies and issuing policy
guidance to members of the regime.
(7) COMMON LIST OF CONTROLLED ITEMS.—
There is agreement on a common list of items con-
trolled by the multilateral export control regime.
(8) REGULAR
UPDATES
OF
COMMON
LIST.—
There is a procedure for removing items from the
list of controlled items when the control of such
items no longer serves the objectives of the members
of the multilateral export control regime.
(9) TREATMENT
OF
CERTAIN
COUNTRIES.—
There is agreement to prevent the export or diver-
sion of the most sensitive items to countries whose
activities are threatening to the national security of
the United States or its allies.
(10) HARMONIZATION OF LICENSE APPROVAL
PROCEDURES.—There is harmonization among the
members of the regime of their national export li-
cense approval procedures, practices, and standards.
(11) UNDERCUTTING.—There is a limit with re-
spect to when members of a multilateral export con-
trol regime—
(A) grant export licenses for any item that
is substantially identical to or directly competi-
tive with an item controlled pursuant to the re-
gime, where the United States has denied an
export license for such item, or
(B) approve exports to a particular end
user to which the United States has denied ex-
port license for a similar item.
(d) STANDARDS FOR NATIONAL EXPORT CONTROL
SYSTEMS.—The President shall take steps to attain the
cooperation of members of each regime in implementing
effective national export control systems containing the
following features:
(1) EXPORT CONTROL LAW.—Enforcement au-
thority, civil and criminal penalties, and statutes of
limitations are sufficient to deter potential violations
and punish violators under the member’s export con-
trol law.
(2) LICENSE APPROVAL PROCESS.—The system
for evaluating export license applications includes
sufficient technical expertise to assess the licensing
status of exports and ensure the reliability of end
users.
(3) ENFORCEMENT.—The enforcement mecha-
nism provides authority for trained enforcement offi-
cers to investigate and prevent illegal exports.
(4) DOCUMENTATION.—There is a system of
export control documentation and verification with
respect to controlled items.
(5) INFORMATION.—There are procedures for
the coordination and exchange of information con-
cerning licensing, end users, and enforcement with
other members of the multilateral export control re-
gime.
(6) RESOURCES.—The member has devoted
adequate resources to administer effectively the au-
thorities, systems, mechanisms, and procedures de-
scribed in paragraphs (1) through (5).
(e) OBJECTIVES REGARDING MULTILATERAL EX-
PORT CONTROL REGIMES.—The President shall seek to
achieve the following objectives with regard to multilateral
export control regimes:
(1) 
STRENGTHEN
EXISTING
REGIMES.—
Strengthen existing multilateral export control
regimes—
(A) by creating a requirement to share in-
formation about export license applications
among members before a member approves an
export license; and
(B) harmonizing national export license
approval procedures and practices, including
the elimination of undercutting.
(2) REVIEW AND UPDATE.—Review and update
multilateral regime export control lists with other
members, taking into account—
(A) national security concerns;
(B) the controllability of items; and
(C) the costs and benefits of controls.
(3) ENCOURAGE
COMPLIANCE
BY
NONMEM-
BERS.—Encourage nonmembers of the multilateral
export control regime—
(A) to strengthen their national export
control regimes and improve enforcement;
(B) to adhere to the appropriate multilat-
eral export control regime; and
(C) not to undermine an existing multilat-
eral export control regime by exporting con-
trolled items in a manner inconsistent with the
guidelines of the regime.
(f) TRANSPARENCY
OF
MULTILATERAL
EXPORT
CONTROL REGIMES.—
(1) PUBLICATION OF INFORMATION ON EACH
EXISTING REGIME.—Not later than 120 days after
the date of enactment of this Act, the Secretary
shall, for each multilateral export control regime, to
the extent that it is not inconsistent with the ar-
rangements of that regime (in the judgment of the
Secretary of State) or with the national interest,
publish in the Federal Register and post on the De-
partment of Commerce website the following infor-
mation with respect to the regime:
(A) The purposes of the regime.
(B) The members of the regime.
(C) The export licensing policy of the re-
gime.
(D) The items that are subject to export
controls under the regime, together with all
public notes, understandings, and other aspects
of the agreement of the regime, and all changes
thereto.
(E) Any countries, end uses, or end users
that are subject to the export controls of the re-
gime.
(F) Rules of interpretation.
(G) Major policy actions.
(H) The rules and procedures of the re-
gime for establishing and modifying any matter
described in subparagraphs (A) through (G)
and for reviewing export license applications.
(2) NEW REGIMES.—Not later than 60 days
after the United States joins or organizes a new
multilateral export control regime, the Secretary
shall, to the extent that it is not inconsistent with
arrangements under the regime (in the judgment of
the Secretary of State) or with the national interest,
publish in the Federal Register and post on the De-
partment of Commerce website the information de-
scribed in subparagraphs (A) through (H) of para-
graph (1) with respect to the regime.
(3) PUBLICATION
OF
CHANGES.—Not later
than 60 days after a multilateral export control re-
gime adopts any change in the information published
under this subsection, the Secretary shall, to the ex-
tent not inconsistent with the arrangements under
the regime or the national interest, publish such
changes in the Federal Register and post such
changes on the Department of Commerce website.
(g) SUPPORT OF OTHER COUNTRIES’ EXPORT CON-
TROL SYSTEMS.—The Secretary is encouraged to continue
to—
(1) participate in training of, and provide train-
ing to, officials of other countries on the principles
and procedures for implementing effective export
controls; and
(2) participate in any such training provided by
other departments and agencies of the United
States.
SEC. 502. FOREIGN BOYCOTTS.
(a) PURPOSES.—The purposes of this section are as
follows:
(1) To counteract restrictive trade practices or
boycotts fostered or imposed by foreign countries
against other countries friendly to the United States
or against any United States person.
(2) To encourage and, in specified cases, re-
quire United States persons engaged in the export of
items to refuse to take actions, including furnishing
information or entering into or implementing agree-
ments, which have the effect of furthering or sup-
porting the restrictive trade practices or boycotts
fostered or imposed by any foreign country against
a country friendly to the United States or against
any United States person.
(b) PROHIBITIONS AND EXCEPTIONS.—
(1) PROHIBITIONS.—In order to carry out the
purposes set forth in subsection (a), the President
shall issue regulations prohibiting any United States
person, with respect to that person’s activities in the
interstate or foreign commerce of the United States,
from taking or knowingly agreeing to take any of
the following actions with intent to comply with, fur-
ther, or support any boycott fostered or imposed by
a foreign country against a country that is friendly
to the United States and is not itself the object of
any form of boycott pursuant to United States law
or regulation:
(A) Refusing, or requiring any other per-
son to refuse, to do business with or in the boy-
cotted country, with any business concern orga-
nized under the laws of the boycotted country,
with any national or resident of the boycotted
country, or with any other person, pursuant to
an agreement with, or requirement of, or a re-
quest from or on behalf of the boycotting coun-
try (subject to the condition that the intent re-
quired to be associated with such an act in
order to constitute a violation of the prohibition
is not indicated solely by the mere absence of
a business relationship with or in the boycotted
country, with any business concern organized
under the laws of the boycotted country, with
any national or resident of the boycotted coun-
try, or with any other person).
(B) Refusing, or requiring any other per-
son to refuse, to employ or otherwise discrimi-
nate against any United States person on the
basis of the race, religion, sex, or national ori-
gin of that person or of any owner, officer, di-
rector, or employee of such person.
(C) Furnishing information with respect to
the race, religion, sex, or national origin of any
United States person or of any owner, officer,
director, or employee of such person.
(D) Furnishing information (other than
furnishing normal business information in a
commercial context, as defined by the Sec-
retary) about whether any person has, has had,
or proposes to have any business relationship
(including a relationship by way of sale, pur-
chase, legal or commercial representation, ship-
ping or other transport, insurance, investment,
or supply) with or in the boycotted country,
with any business concern organized under the
laws of the boycotted country, with any national
or resident of the boycotted country, or with
any other person that is known or believed to
be restricted from having any business relation-
ship with or in the boycotting country.
(E) Furnishing information about whether
any person is a member of, has made a con-
tribution to, or is otherwise associated with or
involved in the activities of any charitable or
fraternal organization which supports the boy-
cotted country.
(F) Paying, honoring, confirming, or other-
wise implementing a letter of credit which con-
tains any condition or requirement the compli-
ance with which is prohibited by regulations
issued pursuant to this paragraph, and no
United States person shall, as a result of the
application of this paragraph, be obligated to
pay or otherwise honor or implement such letter
of credit.
(2) EXCEPTIONS.—Regulations issued pursuant
to paragraph (1) shall provide exceptions for—
(A) compliance, or agreement to comply,
with requirements—
(i) prohibiting the import of items
from the boycotted country or items pro-
duced or provided, by any business concern
organized under the laws of the boycotted
country or by nationals or residents of the
boycotted country; or
(ii) prohibiting the shipment of items
to the boycotting country on a carrier of
the boycotted country or by a route other
than that prescribed by the boycotting
country or the recipient of the shipment;
(B) compliance, or agreement to comply,
with import and shipping document require-
ments with respect to the country of origin, the
name of the carrier and route of shipment, the
name of the supplier of the shipment, or the
name of the provider of other services, except
that, for purposes of applying any exception
under this subparagraph, no information know-
ingly furnished or conveyed in response to such
requirements may be stated in negative, black-
listing, or similar exclusionary terms, other
than with respect to carriers or route of ship-
ment as may be permitted by such regulations
in order to comply with precautionary require-
ments protecting against war risks and confis-
cation;
(C) compliance, or agreement to comply, in
the normal course of business with the unilat-
eral and specific selection by a boycotting coun-
try, or a national or resident thereof, or car-
riers, insurers, suppliers of services to be per-
formed within the boycotting country, or spe-
cific items which, in the normal course of busi-
ness, are identifiable by source when imported
into the boycotting country;
(D) compliance, or agreement to comply,
with export requirements of the boycotting
country relating to shipment or transshipment
of exports to the boycotted country, to any busi-
ness concern of or organized under the laws of
the boycotted country, or to any national or
resident of the boycotted country;
(E) compliance by an individual, or agree-
ment by an individual to comply, with the immi-
gration or passport requirements of any country
with respect to such individual or any member
of such individual’s family or with requests for
information regarding requirements of employ-
ment of such individual within the boycotting
country; and
(F) compliance by a United States person
resident in a foreign country, or agreement by
such a person to comply, with the laws of the
country with respect to the person’s activities
exclusively therein, and such regulations may
contain exceptions for such resident complying
with the laws or regulations of the foreign coun-
try governing imports into such country of
trademarked, trade-named, or similarly specifi-
cally identifiable products, or components of
products for such person’s own use, including
the performance of contractual services within
that country.
(3) LIMITATION ON EXCEPTIONS.—Regulations
issued pursuant to paragraphs (2)(C) and (2)(F)
shall not provide exceptions from paragraphs (1)(B)
and (1)(C).
(4) ANTITRUST AND CIVIL RIGHTS LAWS NOT
AFFECTED.—Nothing in this subsection may be con-
strued to supersede or limit the operation of the
antitrust or civil rights laws of the United States.
(5) EVASION.—This section applies to any
transaction or activity undertaken by or through a
United States person or any other person with in-
tent to evade the provisions of this section or the
regulations issued pursuant to this subsection. The
regulations issued pursuant to this section shall ex-
pressly provide that the exceptions set forth in para-
graph (2) do not permit activities or agreements (ex-
pressed or implied by a course of conduct, including
a pattern of responses) that are otherwise prohib-
ited, pursuant to the intent of such exceptions.
(c) ADDITIONAL REGULATIONS AND REPORTS.—
(1) REGULATIONS.—In addition to the regula-
tions issued pursuant to subsection (b), regulations
issued pursuant to title III shall implement the pur-
poses set forth in subsection (a).
(2) REPORTS BY UNITED STATES PERSONS.—
The regulations shall require that any United States
person receiving a request to furnish information,
enter into or implement an agreement, or take any
other action referred to in subsection (a) shall report
that request to the Secretary, together with any
other information concerning the request that the
Secretary determines appropriate. The person shall
also submit to the Secretary a statement regarding
whether the person intends to comply, and whether
the person has complied, with the request. Any re-
port filed pursuant to this paragraph shall be made
available promptly for public inspection and copying,
except that information regarding the quantity, de-
scription, and value of any item to which such report
relates may be treated as confidential if the Sec-
retary determines that disclosure of that information
would place the United States person involved at a
competitive disadvantage. The Secretary shall peri-
odically transmit summaries of the information con-
tained in the reports to the Secretary of State for
such action as the Secretary of State, in consultation
with the Secretary, considers appropriate to carry
out the purposes set forth in subsection (a).
(d) PREEMPTION.—The provisions of this section and
the regulations issued under this section shall preempt any
law, rule, or regulation that—
(1) is a law, rule, or regulation of any of the
several States or the District of Columbia, or any of
the territories or possessions of the United States,
or of any governmental subdivision thereof; and
(2) pertains to participation in, compliance
with, implementation of, or the furnishing of infor-
mation regarding restrictive trade practices or boy-
cotts fostered or imposed by foreign countries
against other countries.
SEC. 503. PENALTIES.
(a) CRIMINAL PENALTIES.—
(1) VIOLATIONS BY AN INDIVIDUAL.—Any indi-
vidual who willfully violates, conspires to violate, or
attempts to violate any provision of this Act or any
regulation, license, or order issued under this Act
shall be fined up to 10 times the value of the exports
involved or $1,000,000, whichever is greater, impris-
oned for not more than 10 years, or both, for each
violation.
(2) VIOLATIONS BY A PERSON OTHER THAN AN
INDIVIDUAL.—Any person other than an individual
who willfully violates, conspires to violate, or at-
tempts to violate any provision of this Act or any
regulation, license, or order issued under this Act
shall be fined up to 10 times the value of the exports
involved or $5,000,000, whichever is greater, for
each violation.
(b) FORFEITURE OF PROPERTY INTEREST AND PRO-
CEEDS.—
(1) FORFEITURE.—Any person who is convicted
under paragraph (1) or (2) of subsection (a) shall,
in addition to any other penalty, forfeit to the
United States—
(A) any of that person’s security or other
interest in, claim against, or property or con-
tractual rights of any kind in the tangible items
that were the subject of the violation;
(B) any of that person’s security or other
interest in, claim against, or property or con-
tractual rights of any kind in the tangible prop-
erty that was used in the export or attempt to
export that was the subject of the violation; and
(C) any of that person’s property consti-
tuting, or derived from, any proceeds obtained
directly or indirectly as a result of the violation.
(2) PROCEDURES.—The procedures in any for-
feiture under this subsection, and the duties and au-
thority of the courts of the United States and the
Attorney General with respect to any forfeiture ac-
tion under this subsection, or with respect to any
property that may be subject to forfeiture under this
subsection, shall be governed by the provisions of
chapter 46 of title 18, United States Code (relating
to criminal forfeiture), to the same extent as prop-
erty subject to forfeiture under that chapter.
(c) CIVIL
PENALTIES; ADMINISTRATIVE
SANC-
TIONS.—
(1) CIVIL PENALTIES.—The Secretary may im-
pose a civil penalty of up to $500,000 for each viola-
tion of a provision of this Act or any regulation, li-
cense, or order issued under this Act. A civil penalty
under this paragraph may be in addition to, or in
lieu of, any other liability or penalty which may be
imposed for such a violation.
(2) DENIAL OF EXPORT PRIVILEGES.—The Sec-
retary may deny the export privileges of any person,
including the suspension or revocation of the author-
ity of such person to export or receive United
States-origin items subject to this Act, for a viola-
tion of a provision of this Act or any regulation, li-
cense, or order issued under this Act.
(3) EXCLUSION
FROM
PRACTICE.—The Sec-
retary may exclude any person acting as an attor-
ney, accountant, consultant, freight forwarder, or in
any other representative capacity from participating
before the Department with respect to a license ap-
plication or any other matter under this Act.
(d) PAYMENT OF CIVIL PENALTIES.—
(1) PAYMENT AS CONDITION OF FURTHER EX-
PORT PRIVILEGES.—The payment of a civil penalty
imposed under subsection (c) may be made a condi-
tion for the granting, restoration, or continuing va-
lidity of any export license, permission, or privilege
granted or to be granted to the person upon whom
such penalty is imposed. The period for which the
payment of a penalty may be made such a condition
may not exceed 1 year after the date on which the
payment is due.
(2) DEFERRAL OR SUSPENSION.—
(A) IN GENERAL.—The payment of a civil
penalty imposed under subsection (c) may be
deferred or suspended in whole or in part for a
period no longer than any probation period
(which may exceed 1 year) that may be imposed
upon the person on whom the penalty is im-
posed.
(B) NO
BAR
TO
COLLECTION
OF
PEN-
ALTY.—A deferral or suspension under sub-
paragraph (A) shall not operate as a bar to the
collection of the penalty concerned in the event
that the conditions of the suspension, deferral,
or probation are not fulfilled.
(3) TREATMENT OF PAYMENTS.—Any amount
paid in satisfaction of a civil penalty imposed under
subsection (c) shall be covered into the Treasury as
miscellaneous receipts.
(e) REFUNDS.—
(1) AUTHORITY.—
(A) IN GENERAL.—The Secretary may, in
the Secretary’s discretion, refund any civil pen-
alty imposed under subsection (c) on the
ground of a material error of fact or law in im-
position of the penalty.
(B) LIMITATION.—A civil penalty may not
be refunded under subparagraph (A) later than
2 years after payment of the penalty.
(2) PROHIBITION ON ACTIONS FOR REFUND.—
Notwithstanding section 1346(a) of title 28, United
States Code, no action for the refund of any civil
penalty referred to in paragraph (1) may be main-
tained in any court.
(f) EFFECT OF OTHER CONVICTIONS.—
(1) DENIAL OF EXPORT PRIVILEGES.—Any per-
son convicted of a violation of—
(A) a provision of this Act or the Export
Administration Act of 1979,
(B) a provision of the International Emer-
gency Economic Powers Act (50 U.S.C. 1701 et
seq.),
(C) section 793, 794, or 798 of title 18,
United States Code,
(D) section 4(b) of the Internal Security
Act of 1950 (50 U.S.C. 783(b)),
(E) section 38 of the Arms Export Control
Act (22 U.S.C. 2778),
(F) section 16 of the Trading with the
Enemy Act (50 U.S.C. App. 16),
(G) any regulation, license, or order issued
under any provision of law listed in subpara-
graph (A), (B), (C), (D), (E), or (F),
(H) section 371 or 1001 of title 18, United
States Code, if in connection with the export of
controlled items under this Act or any regula-
tion, license, or order issued under the Inter-
national Emergency Economic Powers Act, or
the export of items controlled under the Arms
Export Control Act,
(I) section 175 of title 18, United States
Code,
(J) a provision of the Atomic Energy Act
(42 U.S.C. 201 et seq.),
(K) section 831 of title 18, United States
Code, or
(L) section 2332a of title 18, United
States Code,
may, at the discretion of the Secretary, be denied ex-
port privileges under this Act for a period not to ex-
ceed 10 years from the date of the conviction. The
Secretary may also revoke any export license under
this Act in which such person had an interest at the
time of the conviction.
(2) RELATED
PERSONS.—The Secretary may
exercise the authority under paragraph (1) with re-
spect to any person related through affiliation, own-
ership, control, or position of responsibility to a per-
son convicted of any violation of a law set forth in
paragraph (1) upon a showing of such relationship
with the convicted person. The Secretary shall make
such showing only after providing notice and oppor-
tunity for a hearing.
(g) STATUTE OF LIMITATIONS.—
(1) IN GENERAL.—Except as provided in para-
graph (2), a proceeding in which a civil penalty or
other administrative sanction (other than a tem-
porary denial order) is sought under subsection (c)
may not be instituted more than 5 years after the
later of the date of the alleged violation or the date
of discovery of the alleged violation.
(2) EXCEPTION.—
(A) TOLLING.—In any case in which a
criminal indictment alleging a violation under
subsection (a) is returned within the time limits
prescribed by law for the institution of such ac-
tion, the limitation under paragraph (1) for
bringing a proceeding to impose a civil penalty
or other administrative sanction under this sec-
tion shall, upon the return of the criminal in-
dictment, be tolled against all persons named as
a defendant.
(B) DURATION.—The tolling of the limita-
tion with respect to a defendant under subpara-
graph (A) as a result of a criminal indictment
shall continue for a period of 6 months from
the date on which the conviction of the defend-
ant becomes final, the indictment against the
defendant is dismissed, or the criminal action
has concluded.
(h) VIOLATIONS DEFINED BY REGULATION.—Noth-
ing in this section shall limit the authority of the Secretary
to define by regulation violations under this Act.
(i) CONSTRUCTION.—Nothing in subsection (c), (d),
(e), (f), or (g) limits—
(1) the availability of other administrative or
judicial remedies with respect to a violation of a pro-
vision of this Act, or any regulation, order, or license
issued under this Act;
(2) the authority to compromise and settle ad-
ministrative proceedings brought with respect to any
such violation; or
(3) the authority to compromise, remit, or miti-
gate seizures and forfeitures pursuant to section
1(b) of title VI of the Act of June 15, 1917 (22
U.S.C. 401(b)).
SEC. 504. MISSILE PROLIFERATION CONTROL VIOLATIONS.
(a) VIOLATIONS BY UNITED STATES PERSONS.—
(1) SANCTIONS.—
(A) IN GENERAL.—If the President deter-
mines that a United States person knowingly—
(i) exports, transfers, or otherwise en-
gages in the trade of any item on the
MTCR Annex, in violation of the provi-
sions of section 38 (22 U.S.C. 2778) or
chapter 7 of the Arms Export Control Act,
title II or III of this Act, or any regula-
tions or orders issued under any such pro-
visions,
(ii) conspires to or attempts to engage
in such export, transfer, or trade, or
(iii) facilitates such export, transfer,
or trade by any other person,
then the President shall impose the applicable
sanctions described in subparagraph (B).
100
(B) SANCTIONS
DESCRIBED.—The sanc-
tions which apply to a United States person
under subparagraph (A) are the following:
(i) If the item on the MTCR Annex
involved in the export, transfer, or trade is
missile equipment or technology within cat-
egory II of the MTCR Annex, then the
President shall deny to such United States
person, for a period of 2 years, licenses for
the transfer of missile equipment or tech-
nology controlled under this Act.
(ii) If the item on the MTCR Annex
involved in the export, transfer, or trade is
missile equipment or technology within cat-
egory I of the MTCR Annex, then the
President shall deny to such United States
person, for a period of not less than 2
years, all licenses for items the export of
which is controlled under this Act.
(2) DISCRETIONARY SANCTIONS.—In the case
of any determination referred to in paragraph (1),
the Secretary may pursue any other appropriate
penalties under section 503.
(3) WAIVER.—The President may waive the im-
position of sanctions under paragraph (1) on a per-
101
son with respect to an item if the President certifies
to Congress that—
(A) the item is essential to the national se-
curity of the United States; and
(B) such person is a sole source supplier of
the item, the item is not available from any al-
ternative reliable supplier, and the need for the
item cannot be met in a timely manner by im-
proved manufacturing processes or technological
developments.
(b) TRANSFERS OF MISSILE EQUIPMENT OR TECH-
NOLOGY BY FOREIGN PERSONS.—
(1) SANCTIONS.—
(A) IN GENERAL.—Subject to paragraphs
(3) through (7), if the President determines
that a foreign person, after the date of enact-
ment of this section, knowingly—
(i) exports, transfers, or otherwise en-
gages in the trade of any MTCR equip-
ment or technology that contributes to the
design, development, or production of mis-
siles in a country that is not an MTCR ad-
herent and would be, if it were United
States-origin equipment or technology,
102
subject to the jurisdiction of the United
States under this Act,
(ii) conspires to or attempts to engage
in such export, transfer, or trade, or
(iii) facilitates such export, transfer,
or trade by any other person,
or if the President has made a determination
with respect to a foreign person under section
73(a) of the Arms Export Control Act, then the
President shall impose on that foreign person
the applicable sanctions under subparagraph
(B).
(B) SANCTIONS
DESCRIBED.—The sanc-
tions which apply to a foreign person under
subparagraph (A) are the following:
(i) If the item involved in the export,
transfer, or trade is within category II of
the MTCR Annex, then the President shall
deny, for a period of 2 years, licenses for
the transfer to such foreign person of mis-
sile equipment or technology the export of
which is controlled under this Act.
(ii) If the item involved in the export,
transfer, or trade is within category I of
the MTCR Annex, then the President shall
103
deny, for a period of not less than 2 years,
licenses for the transfer to such foreign
person of items the export of which is con-
trolled under this Act.
(iii) If, in addition to actions taken
under clauses (i) and (ii), the President de-
termines that the export, transfer, or trade
has substantially contributed to the design,
development, or production of missiles in a
country that is not an MTCR adherent,
then the President shall prohibit, for a pe-
riod of not less than 2 years, the importa-
tion into the United States of products
produced by that foreign person.
(2) INAPPLICABILITY WITH RESPECT TO MTCR
ADHERENTS.—Paragraph (1) does not apply with
respect to—
(A) any export, transfer, or trading activ-
ity that is authorized by the laws of an MTCR
adherent, if such authorization is not obtained
by misrepresentation or fraud; or
(B) any export, transfer, or trade of an
item to an end user in a country that is an
MTCR adherent.
104
(3) EFFECT
OF
ENFORCEMENT
ACTIONS
BY
MTCR
ADHERENTS.—Sanctions set forth in para-
graph (1) may not be imposed under this subsection
on a person with respect to acts described in such
paragraph or, if such sanctions are in effect against
a person on account of such acts, such sanctions
shall be terminated, if an MTCR adherent is taking
judicial or other enforcement action against that
person with respect to such acts, or that person has
been found by the government of an MTCR adher-
ent to be innocent of wrongdoing with respect to
such acts.
(4) ADVISORY
OPINIONS.—The Secretary, in
consultation with the Secretary of State and the
Secretary of Defense, may, upon the request of any
person, issue an advisory opinion to that person as
to whether a proposed activity by that person would
subject that person to sanctions under this sub-
section. Any person who relies in good faith on such
an advisory opinion which states that the proposed
activity would not subject a person to such sanc-
tions, and any person who thereafter engages in
such activity, may not be made subject to such sanc-
tions on account of such activity.
(5) WAIVER AND REPORT TO CONGRESS.—
105
(A) WAIVER.—In any case other than one
in which an advisory opinion has been issued
under paragraph (4) stating that a proposed ac-
tivity would not subject a person to sanctions
under this subsection, the President may waive
the application of paragraph (1) to a foreign
person if the President determines that such
waiver is essential to the national security of
the United States.
(B) REPORT TO CONGRESS.—In the event
that the President decides to apply the waiver
described in subparagraph (A), the President
shall so notify Congress not less than 20 work-
ing days before issuing the waiver. Such notifi-
cation shall include a report fully articulating
the rationale and circumstances which led the
President to apply the waiver.
(6) ADDITIONAL WAIVER.—The President may
waive the imposition of sanctions under paragraph
(1) on a person with respect to a product or service
if the President certifies to the Congress that—
(A) the product or service is essential to
the national security of the United States; and
(B) such person is a sole source supplier of
the product or service, the product or service is
106
not available from any alternative reliable sup-
plier, and the need for the product or service
cannot be met in a timely manner by improved
manufacturing processes or technological devel-
opments.
(7) EXCEPTIONS.—The President shall not
apply the sanction under this subsection prohibiting
the importation of the products of a foreign
person—
(A) in the case of procurement of defense
articles or defense services—
(i) under existing contracts or sub-
contracts, including the exercise of options
for production quantities to satisfy require-
ments essential to the national security of
the United States;
(ii) if the President determines that
the person to which the sanctions would be
applied is a sole source supplier of the de-
fense articles and services, that the defense
articles or services are essential to the na-
tional security of the United States, and
that alternative sources are not readily or
reasonably available; or
107
(iii) if the President determines that
such articles or services are essential to the
national security of the United States
under defense coproduction agreements or
NATO Programs of Cooperation;
(B) to products or services provided under
contracts entered into before the date on which
the President publishes his intention to impose
the sanctions; or
(C) to—
(i) spare parts,
(ii) component parts, but not finished
products, essential to United States prod-
ucts or production,
(iii) routine services and maintenance
of products, to the extent that alternative
sources are not readily or reasonably avail-
able, or
(iv) information and technology essen-
tial to United States products or produc-
tion.
(c) DEFINITIONS.—In this section:
(1) MISSILE.—The term ‘‘missile’’ means a cat-
egory I system as defined in the MTCR Annex, and
any other unmanned delivery system of similar capa-
108
bility, as well as the specially designed production
facilities for these systems.
(2) MISSILE TECHNOLOGY CONTROL REGIME;
MTCR.—The term ‘‘Missile Technology Control Re-
gime’’ or ‘‘MTCR’’ means the policy statement, be-
tween the United States, the United Kingdom, the
Federal Republic of Germany, France, Italy, Can-
ada, and Japan, announced on April 16, 1987, to re-
strict sensitive missile-relevant transfers based on
the MTCR Annex, and any amendments thereto.
(3) MTCR ADHERENT.—The term ‘‘MTCR ad-
herent’’ means a country that participates in the
MTCR or that, pursuant to an international under-
standing to which the United States is a party, con-
trols MTCR equipment or technology in accordance
with the criteria and standards set forth in the
MTCR.
(4) MTCR ANNEX.—The term ‘‘MTCR Annex’’
means the Guidelines and Equipment and Tech-
nology Annex of the MTCR, and any amendments
thereto.
(5) MISSILE
EQUIPMENT
OR
TECHNOLOGY;
MTCR
EQUIPMENT
OR
TECHNOLOGY.—The terms
‘‘missile equipment or technology’’ and ‘‘MTCR
109
equipment or technology’’ mean those items listed in
category I or category II of the MTCR Annex.
(6) FOREIGN PERSON.—The term ‘‘foreign per-
son’’ means any person other than a United States
person.
(7) PERSON.—
(A) IN
GENERAL.—The term ‘‘person’’
means a natural person as well as a corpora-
tion, business association, partnership, society,
trust, any other nongovernmental entity, orga-
nization, or group, and any governmental entity
operating as a business enterprise, and any suc-
cessor of any such entity.
(B) IDENTIFICATION IN CERTAIN CASES.—
In the case of countries where it may be impos-
sible to identify a specific governmental entity
referred to in subparagraph (A), the term ‘‘per-
son’’ means—
(i) all activities of that government re-
lating to the development or production of
any missile equipment or technology; and
(ii) all activities of that government
affecting the development or production of
aircraft, electronics, and space systems or
equipment.
110
(8) OTHERWISE ENGAGED IN THE TRADE OF.—
The term ‘‘otherwise engaged in the trade of’’
means, with respect to a particular export or trans-
fer, to be a freight forwarder or designated export-
ing agent, or a consignee or end user of the item to
be exported or transferred.
SEC. 505. CHEMICAL AND BIOLOGICAL WEAPONS PRO-
LIFERATION SANCTIONS.
(a) IMPOSITION OF SANCTIONS.—
(1) DETERMINATION BY THE PRESIDENT.—Ex-
cept as provided in subsection (b)(2), the President
shall impose both of the sanctions described in sub-
section (c) if the President determines that a foreign
person, on or after the date of enactment of this sec-
tion, has knowingly and materially contributed—
(A) through the export from the United
States of any item that is subject to the juris-
diction of the United States under this Act, or
(B) through the export from any other
country of any item that would be, if it were a
United States item, subject to the jurisdiction
of the United States under this Act,
to the efforts by any foreign country, project, or en-
tity described in paragraph (2) to use, develop,
111
produce, stockpile, or otherwise acquire chemical or
biological weapons.
(2) COUNTRIES, PROJECTS, OR ENTITIES RE-
CEIVING ASSISTANCE.—Paragraph (1) applies in the
case of—
(A) any foreign country that the President
determines has, at any time after the date of
enactment of this Act—
(i) used chemical or biological weap-
ons in violation of international law;
(ii) used lethal chemical or biological
weapons against its own nationals; or
(iii) made substantial preparations to
engage in the activities described in clause
(i) or (ii);
(B) any foreign country whose government
is determined for purposes of section 310 to be
a government that has repeatedly provided sup-
port for acts of international terrorism; or
(C) any other foreign country, project, or
entity designated by the President for purposes
of this section.
(3) PERSONS AGAINST WHICH SANCTIONS ARE
TO BE IMPOSED.—Sanctions shall be imposed pursu-
ant to paragraph (1) on—