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, to the
same extent as property subject to forfeiture under
that chapter.
(c) CIVIL
PENALTIES; ADMINISTRATIVE
SANC-
TIONS.—
(1) CIVIL PENALTIES.—The Secretary may im-
pose a civil penalty of not more than $250,000 for
each violation of this title or any regulation, license,
or order issued under this title, either in addition to
or in lieu of any other liability or penalty which may
be imposed, except that the civil penalty for each
such violation of regulations issued under section
108 may not exceed $50,000.
(2) DENIAL OF EXPORT PRIVILEGES.—The Sec-
retary may deny the export privileges of any person,
including suspending or revoking the authority of
any person to export or receive United States-origin
commodities or technology subject to this title, on
account of any violation of this title or any regula-
tion, license, or order issued under this title.
(d) PAYMENT OF CIVIL PENALTIES.—The payment
of any civil penalty imposed under subsection (c) may be
made a condition, for a period not exceeding 1 year after
the penalty has become due but has not been paid, to the
granting, restoration, or continuing validity of any export
license, permission, or privilege granted or to be granted
to the person upon whom such penalty is imposed. In addi-
tion, the payment of any civil penalty imposed under sub-
section (c) may be deferred or suspended in whole or in
part for a period of time no longer than any probation
period (which may exceed 1 year) that may be imposed
upon such person. Such deferral or suspension shall not
operate as a bar to the collection of the penalty in the
event that the conditions of the suspension, deferral, or
probation are not fulfilled.
(e) REFUNDS.—Any amount paid in satisfaction of
any civil penalty imposed under subsection (c) shall be cov-
ered into the Treasury as a miscellaneous receipt. The
head of the department or agency concerned may, in his
or her discretion, refund any such civil penalty imposed
under subsection (c), within 2 years after payment, on the
ground of a material error of fact or law in the imposition
of the penalty. Notwithstanding section 1346(a) of title
28, United States Code, no action for the refund of any
such penalty may be maintained in any court.
(f) EFFECT OF OTHER CONVICTIONS.—
(1) DENIAL OF EXPORT PRIVILEGES.—Any per-
son convicted of a violation of—
(A) this title or the Export Administration
Act of 1979,
(B) the International Emergency Economic
Powers Act,
(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,
(F) section 16 of the Trading with the
Enemy Act (59 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), or
(H) section 371 or 1001 of title 18, United
States Code, if in connection with the export of
commodities or technology controlled under this
title, any regulation, license or order issued
under the International Emergency Economic
Powers Act, or defense articles or defense serv-
ices controlled under the Arms Export Control
Act,
100
may, at the discretion of the Secretary, be denied ex-
port privileges under this title for a period of up to
10 years from the date of the conviction. The Sec-
retary may also revoke any export license under this
title 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 any
person convicted of any violation of a law set forth
in paragraph (1), upon a showing of such relation-
ship with the convicted person, after providing notice
and opportunity for a hearing.
(g) STATUTE OF LIMITATIONS.—Any proceeding in
which a civil penalty or other administrative sanction
(other than a temporary denial order) is sought under sub-
section (c) may not be instituted more than 5 years after
the date of the alleged violation, except that, in any case
in which a criminal indictment alleging a violation of this
title is returned within the time limits prescribed by law
for the institution of such action, the statute of limitations
for bringing a proceeding to impose such a civil penalty
or other administrative sanction under this title shall,
upon the return of the criminal indictment, be tolled
101
against all persons named as a defendant. The tolling of
the statute of limitations shall continue for a period of
6 months from the date a conviction becomes final or the
indictment is dismissed.
(h) VIOLATIONS DEFINED BY REGULATION.—Noth-
ing in this section shall limit the power of the Secretary
to define by regulation violations under this title.
(i) OTHER AUTHORITIES.—Nothing in subsection
(c), (d), (e), (f), or (g) limits—
(1) the availability of other administrative or
judicial remedies with respect to violations of this
title, or any regulation, order, or license issued
under this title;
(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)).
(j) PRIVATE RIGHT OF ACTION.—Any person—
(1) against whom an act of discrimination de-
scribed in section 108(a)(1)(B) is committed, or
(2) who, on account of a violation of the regula-
tions issued pursuant to section 108(a), loses an op-
102
portunity to engage in a commercial venture pursu-
ant to a contract, joint venture, or other commercial
transaction, including an opportunity to bid or ten-
der an offer for a contract,
may bring an action in an appropriate district court of
the United States against the United States person com-
mitting the violation, for recovery of actual damages in-
curred on account of such act of discrimination or lost
opportunity. In any such action the court may award puni-
tive damages. An action may be brought under this sub-
section against a United States person whether or not the
United States person has been determined under this sec-
tion to have violated the regulations issued pursuant to
section 108(a) on account of which the action is brought.
In an action brought under this subsection, unless the
court finds that the interests of justice require otherwise,
the court shall designate the substantially prevailing party
or parties in the action, and the remaining parties shall
pay the reasonable attorneys’ fees of the substantially pre-
vailing party or parties in such proportion as the court
shall determine.
SEC. 111. CONTROLLING PROLIFERATION ACTIVITY.
(a) PROLIFERATION CONTROLS.—
(1) MISSILE
TECHNOLOGY
CONTROLS.—The
Secretary, in consultation with the Secretary of De-
103
fense and the heads of other appropriate depart-
ments and agencies and consistent with sections 103
and 104(g)—
(A) shall establish and maintain, as part of
the control index established under section
104(b), dual-use items on the MTCR Annex;
(B) may include, as part of the control
index established under section 104(b), items
that—
(i) would make a material contribu-
tion to the design, development, test, pro-
duction, stockpiling, or use of missile deliv-
ery systems, and
(ii) are not included in the MTCR
Annex but which the United States has
proposed to the other members of the
MTCR for inclusion in the MTCR Annex;
and
(C) shall require a license under paragraph
(1) or (2) of section 104(a), consistent with the
arrangements of the MTCR, for—
(i) any export of items on the control
index pursuant to subparagraphs (A) and
(B) to any country; and
104
(ii) any export of items that the ex-
porter knows is destined for a project or
facility for the design, development, or
manufacture of a missile in a country that
is not an adherent to the MTCR.
(2) CHEMICAL AND BIOLOGICAL WEAPONS CON-
TROLS.—The Secretary, in consultation with the
Secretary of Defense and the heads of other appro-
priate departments and agencies and consistent with
sections 103 and 104(g)—
(A) shall establish and maintain, as part of
the control index established under section
104(b), dual-use items listed by the Australia
Group or the Chemical Weapons Convention;
(B) may include, as part of the control
index established under section 104(b), items
that—
(i) would make a material contribu-
tion to the design, development, test, pro-
duction, stockpiling, or use of chemical or
biological weapons, and
(ii) are not contained on the list of
controlled items of the Australia Group but
which the United States has proposed to
105
the other members of the Australia Group
for inclusion in such list; and
(C) shall require a license under paragraph
(1) or (2) of section 104(a), consistent with the
arrangements of the Australia Group and the
Chemical Weapons Convention, for—
(i) any export of items on the control
index pursuant to subparagraphs (A) and
(B) to any country, except as provided for
in section 105(e); and
(ii) any export of items that the ex-
porter knows is destined for a project or
facility for the design, development, or
manufacture of a chemical or biological
weapon.
(3) POLICY OF DENIAL OF LICENSES.—(A) Li-
censes under paragraph (1)(C) should in general be
denied if the ultimate consignee of the commodities
or technology is a facility in a country that is not
an adherent to the MTCR and the facility is de-
signed to develop or build missiles.
(B) Licenses under paragraph (1)(C) shall be
denied if the ultimate consignee of the commodities
or technology is a facility in a country the govern-
ment of which has been determined under section
106
106(i)(1) to have repeatedly provided support for
acts of international terrorism.
(b) TECHNICAL AMENDMENTS
TO ARMS EXPORT
CONTROL ACT.—(1) Section 71(a) of the Arms Export
Control Act (22 U.S.C. 2797(a)) is amended by striking
‘‘6(l) of the Export Administration Act of 1979’’ and in-
serting ‘‘111(a) of the Export Administration Act of
1996’’.
(2) Section 81(a)(1) of the Arms Export Control Act
(22 U.S.C. 2798(a)(1)) is amended in subparagraphs (A)
and (B) by inserting ‘‘under this Act’’ after ‘‘United
States’’ the second place it appears in each subparagraph.
(c) GENERAL PROHIBITION.—Notwithstanding any
other provision of this title, the export of commodities or
technology shall be prohibited if the ultimate consignee is
a program or activity for the design, development, manu-
facture, stockpiling, testing, or other acquisition of a
weapon of mass destruction or missile in a country that
is not an adherent to the regime controlling such weapon
or missile, unless the Secretary determines such export
would not make a material contribution to such program
or activity.
(d) CHEMICAL
AND BIOLOGICAL WEAPONS PRO-
LIFERATION SANCTIONS.—
(1) IMPOSITION OF SANCTIONS.—
107
(A) DETERMINATION
BY
THE
PRESI-
DENT.—Except 
as 
provided 
in 
paragraph
(2)(B), the President shall impose both of the
sanctions described in paragraph (3) if the
President determines that a foreign person, on
or after the date of the enactment of this Act,
has knowingly and materially contributed—
(i) through the export from the Unit-
ed States of any goods or technology that
are subject to the jurisdiction of the Unit-
ed States under this title, or
(ii) through the export from any other
country of any goods or technology that
would be, if they were United States goods
or technology, subject to the jurisdiction of
the United States under this title,
to the efforts by any foreign country, project, or
entity described in subparagraph (B) to use, de-
velop, produce, stockpile, or otherwise acquire
chemical or biological weapons.
(B) COUNTRIES, PROJECTS, OR ENTITIES
RECEIVING
ASSISTANCE.—Subparagraph 
(A)
applies in the case of—
108
(i) any foreign country that the Presi-
dent determines has, at any time after
January 1, 1980—
(I) used chemical or biological
weapons in violation of international
law;
(II) used lethal chemical or bio-
logical weapons against its own na-
tionals; or
(III) made substantial prepara-
tions to engage in the activities de-
scribed in subclause (I) or (II);
(ii) any foreign country whose govern-
ment is determined for purposes of section
106(i) to be a government that has repeat-
edly provided support for acts of inter-
national terrorism; or
(iii) 
any 
other 
foreign 
country,
project, or entity designated by the Presi-
dent for purposes of this subsection.
(C) PERSONS AGAINST WHICH SANCTIONS
ARE TO BE IMPOSED.—Sanctions shall be im-
posed pursuant to subparagraph (A) on—
109
(i) the foreign person with respect to
which the President makes the determina-
tion described in that subparagraph;
(ii) any successor entity to that for-
eign person;
(iii) any foreign person that is a par-
ent or subsidiary of that foreign person if
that parent or subsidiary knowingly as-
sisted in the activities which were the basis
of that determination; and
(iv) any foreign person that is an af-
filiate of that foreign person if that affili-
ate knowingly assisted in the activities
which were the basis of that determination
and if that affiliate is controlled in fact by
that foreign person.
(2) CONSULTATIONS
WITH
AND
ACTIONS
BY
FOREIGN GOVERNMENT OF JURISDICTION.—
(A) CONSULTATIONS.—If the President
makes the determinations described in para-
graph (1)(A) with respect to a foreign person,
the Congress urges the President to initiate
consultations immediately with the government
with primary jurisdiction over that foreign per-
110
son with respect to the imposition of sanctions
pursuant to this subsection.
(B) ACTIONS BY GOVERNMENT OF JURIS-
DICTION.—In order to pursue such consulta-
tions with that government, the President may
delay imposition of sanctions pursuant to this
subsection for a period of up to 90 days. Fol-
lowing these consultations, the President shall
impose sanctions unless the President deter-
mines and certifies to the Congress that that
government has taken specific and effective ac-
tions, including appropriate penalties, to termi-
nate the involvement of the foreign person in
the activities described in paragraph (1)(A).
The President may delay imposition of sanc-
tions for an additional period of up to 90 days
if the President determines and certifies to the
Congress that that government is in the process
of taking the actions described in the preceding
sentence.
(C) REPORT
TO
CONGRESS.—The Presi-
dent shall report to the Congress, not later than
90 days after making a determination under
paragraph (1)(A), on the status of consultations
with the appropriate government under this
111
subsection, and the basis for any determination
under subparagraph (B) of this paragraph that
such government has taken specific corrective
actions.
(3) SANCTIONS.—
(A) DESCRIPTION
OF
SANCTIONS.—The
sanctions to be imposed pursuant to paragraph
(1)(A) are, except as provided in subparagraph
(B) of this paragraph, the following:
(i) PROCUREMENT
SANCTION.—The
United States Government shall not pro-
cure, or enter into any contract for the
procurement of, any goods or services from
any person described in paragraph (1)(C).
(ii) IMPORT SANCTIONS.—The impor-
tation into the United States of products
produced by any person described in para-
graph (1)(C) shall be prohibited.
(B) EXCEPTIONS.—The President shall
not be required to apply or maintain sanctions
under this subsection—
(i) in the case of procurement of de-
fense articles or defense services—
(I) under existing contracts or
subcontracts, including the exercise of
112
options for production quantities to
satisfy United States operational mili-
tary requirements;
(II) if the President determines
that the person or other entity to
which the sanctions would otherwise
be applied is a sole source supplier of
the defense articles or services, that
the defense articles or services are es-
sential, and that alternative sources
are not readily or reasonably avail-
able; or
(III) if the President determines
that such articles or services are es-
sential to the national security under
defense coproduction agreements;
(ii) to products or services provided
under contracts entered into before the
date on which the President publishes his
intention to impose sanctions;
(iii) to—
(I) spare parts,
(II) component parts, but not
finished products, essential to United
States products or production, or
113
(III) routine servicing and main-
tenance of products, to the extent that
alternative sources are not readily or
reasonably available;
(iv) to information and technology es-
sential to United States products or pro-
duction; or
(v) to medical or other humanitarian
items.
(4) TERMINATION OF SANCTIONS.—The sanc-
tions imposed pursuant to this subsection shall apply
for a period of at least 12 months following the im-
position of sanctions and shall cease to apply there-
after only if the President determines and certifies
to the Congress that reliable information indicates
that the foreign person with respect to which the de-
termination was made under paragraph (1)(A) has
ceased to aid or abet any foreign government,
project, or entity in its efforts to acquire chemical or
biological weapons capability as described in that
paragraph.
(5) WAIVER.—
(A) CRITERION FOR WAIVER.—The Presi-
dent may waive the application of any sanction
imposed on any person pursuant to this sub-
114
section, after the end of the 12-month period
beginning on the date on which that sanction
was imposed on that person, if the President
determines and certifies to the Congress that
such waiver is important to the national secu-
rity interests of the United States.
(B) NOTIFICATION
OF
AND
REPORT
TO
CONGRESS.—If the President decides to exercise
the waiver authority provided in subparagraph
(A), the President shall so notify the Congress
not less than 20 days before the waiver takes
effect. Such notification shall include a report
fully 
articulating 
the 
rationale 
and 
cir-
cumstances which led the President to exercise
the waiver authority.
(6) DEFINITION
OF
FOREIGN
PERSON.—For
purposes of this subsection, the term ‘‘foreign per-
son’’ means—
(A) an individual who is not a citizen of
the United States or an alien lawfully admitted
for permanent residence to the United States;
or
(B) a corporation, partnership, or other
entity which is created or organized under the
laws of a foreign country or which has its prin-
115
cipal place of business outside the United
States.
(e) MISSILE
PROLIFERATION
CONTROL
VIOLA-
TIONS.—
(1) VIOLATIONS
BY
UNITED
STATES
PER-
SONS.—
(A) SANCTIONS.—(i) If the President de-
termines that a United States person know-
ingly—
(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,
this title, or any regulations or orders is-
sued under any such provisions,
(II) conspires to or attempts to en-
gage 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 clause (ii).
(ii) The sanctions which apply to a United
States person under clause (i) are the following:
116
(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 title.
(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 title.
(B) DISCRETIONARY SANCTIONS.—In the
case of any determination referred to in sub-
paragraph (A), the Secretary may pursue any
other appropriate penalties under section 110.
(C) WAIVER.—The President may waive
the imposition of sanctions under subparagraph
(A) on a person with respect to a product or
service if the President certifies to the Congress
that—
117
(i) the product or service is essential
to the national security of the United
States; and
(ii) such person is a sole source sup-
plier of the product or service, the product
or service is not available from any alter-
native reliable supplier, and the need for
the product or service cannot be met in a
timely manner by improved manufacturing
processes or technological developments.
(2) TRANSFERS
OF
MISSILE
EQUIPMENT
OR
TECHNOLOGY BY FOREIGN PERSONS.—
(A) SANCTIONS.—(i) Subject to subpara-
graphs (C) through (G), if the President deter-
mines that a foreign person, after the date of
the enactment 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 adherent
to the MTCR and would be, if it were
United States-origin equipment or tech-
nology, subject to the jurisdiction of the
United States under this title,
118
(II) conspires to or attempts to en-
gage 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 clause (ii).
(ii) The sanctions which apply to a foreign
person under clause (i) 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 title.
(II) If the item involved in the export,
transfer, or trade is within category I of
the MTCR Annex, then the President shall
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 title.
119
(III) If, in addition to actions taken
under subclauses (I) and (II), the Presi-
dent determines that the export, transfer,
or trade has substantially contributed to
the design, development, or production of
missiles in a country that is not an adher-
ent to the MTCR, then the President shall
prohibit, for a period of not less than 2
years, the importation into the United
States of products produced by that for-
eign person.
(B) INAPPLICABILITY WITH RESPECT TO
MTCR
ADHERENTS.—Subparagraph (A) does
not apply with respect to—
(i) any export, transfer, or trading ac-
tivity that is authorized by the laws of an
adherent to the MTCR, if such authoriza-
tion is not obtained by misrepresentation
or fraud; or
(ii) any export, transfer, or trade of
an item to an end user in a country that
is an adherent to the MTCR.
(C) EFFECT OF ENFORCEMENT ACTIONS
BY MTCR ADHERENTS.—Sanctions set forth in
subparagraph (A) may not be imposed under
120
this paragraph on a person with respect to acts
described in such subparagraph or, if such
sanctions are in effect against a person on ac-
count of such acts, such sanctions shall be ter-
minated, if an adherent to the MTCR is taking
judicial or other enforcement against that per-
son with respect to such acts, or that person
has been found by the government of an adher-
ent to the MTCR to be innocent of wrongdoing
with respect to such acts.
(D) ADVISORY OPINIONS.—The Secretary,
in consultation with the Secretary of State and
the Secretary of Defense, may, upon the re-
quest 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 paragraph. 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 sanctions,
and any person who thereafter engages in such
activity, may not be made subject to such sanc-
tions on account of such activity.
(E) WAIVER AND REPORT TO CONGRESS.—
(i) In any case other than one in which an advi-
121
sory opinion has been issued under subpara-
graph (D) stating that a proposed activity
would not subject a person to sanctions under
this paragraph, the President may waive the
application of subparagraph (A) to a foreign
person if the President determines that such
waiver is essential to the national security of
the United States.
(ii) In the event that the President decides
to apply the waiver described in clause (i), the
President shall so notify the Congress not less
than 20 working days before issuing the waiver.
Such notification shall include a report fully ar-
ticulating the rationale and circumstances
which led the President to apply the waiver.
(F) ADDITIONAL WAIVER.—The President
may waive the imposition of sanctions under
subparagraph (A) on a person with respect to
a product or service if the President certifies to
the Congress that—
(i) the product or service is essential
to the national security of the United
States; and
(ii) such person is a sole source sup-
plier of the product or service, the product
122
or service is not available from any alter-
native reliable supplier, and the need for
the product or service cannot be met in a
timely manner by improved manufacturing
processes or technological developments.
(G) EXCEPTIONS
FROM
IMPORT
SANC-
TIONS.—The President shall not apply the
sanction under this subsection prohibiting the
importation of the products of a foreign per-
son—
(i) in the case of procurement of de-
fense articles or defense services—
(I) under existing contracts or
subcontracts, including the exercise of
options for production quantities to
satisfy requirements 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 sup-
plier of the defense articles and serv-
ices, that the defense articles or serv-
ices are essential to the national secu-
rity of the United States, and that al-
123
ternative sources are not readily or
reasonably available; or
(III) if the President determines
that such articles or services are es-
sential to the national security of the
United States under defense co-
production agreements;
(ii) to products or services provided
under contracts entered into before the
date on which the President publishes his
intention to impose the sanctions; or
(iii) to—
(I) spare parts,
(II) component parts, but not
finished products, essential to United
States products or production,
(III) routine services and mainte-
nance of products, to the extent that
alternative sources are not readily or
reasonably available, or
(IV) information and technology
essential to United States products or
production.
(3) DEFINITIONS.—For purposes of this sub-
section—
124
(A) the terms ‘‘missile equipment or tech-
nology’’ and ‘‘MTCR equipment or technology’’
mean those items listed in category I or cat-
egory II of the MTCR Annex;
(B) the term ‘‘foreign person’’ means any
person other than a United States person;
(C)(i) the term ‘‘person’’ means a natural
person as well as a corporation, business asso-
ciation, partnership, society, trust, any other
nongovernmental entity, organization, or group,
and any governmental entity operating as a
business enterprise, and any successor of any
such entity; and
(ii) in the case of a country where it may
be impossible to identify a specific governmental
entity referred to in clause (i), the term ‘‘per-
son’’ means—
(I) all activities of that government
relating 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; and
125
(D) the term ‘‘otherwise engaged in the
trade of’’ means, with respect to a particular
export or transfer, to be a freight forwarder or
designated exporting agent, or a consignee or
end user of the item to be exported or trans-
ferred.
(f) EFFECT ON OTHER LAWS.—The provisions of
this section do not affect any activities subject to the re-
porting requirements contained in title V of the National
Security Act of 1947.
(g) SEEKING MULTILATERAL SUPPORT FOR UNILAT-
ERAL SANCTIONS.—The Secretary of State, in consulta-
tion with appropriate departments and agencies, shall seek
the support of other countries for sanctions imposed under
this section.
SEC. 112. ADMINISTRATIVE AND JUDICIAL REVIEW.
(a) APPLICABILITY.—
(1) EXEMPTIONS FROM ADMINISTRATIVE PRO-
CEDURE.—Except as provided in this section, the
functions exercised under this title are excluded
from the operation of sections 551, 553 through
559, and 701 through 706 of title 5, United States
Code.
(2) JUDICIAL
REVIEW.—Except as otherwise
provided in this section, a final agency action under
126
this title may be reviewed by appeal to the United
States Court of Appeals for the District of Columbia
Circuit, to the extent provided in this paragraph.
The court’s review in any such appeal shall be lim-
ited to determining whether—
(A) a regulation—
(i) fails to take an action required by
this title;
(ii) takes an action prohibited by this
title; or
(iii) otherwise violates this title;
(B) an agency action violates this title;
(C) an agency action violates an agency
regulation establishing time requirements or
other procedural requirements of a non-discre-
tionary nature;
(D) the issuance of regulations required by
this title complies with time restrictions im-
posed by this title;
(E) license decisions are made and appeals
thereof are concluded in compliance with time
restrictions imposed by this title;
(F) classifications and advisory opinions
are issued in compliance with time restrictions
imposed by this title;
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(G) unfair impact determinations under
section 114(k) are in compliance with time re-
strictions imposed by that section; or
(H) the United States has complied with
the requirements of section 114(k) after an un-
fair impact determination has been made.
(b) PROCEDURES RELATING TO CIVIL PENALTIES
AND SANCTIONS.—
(1) ADMINISTRATIVE
PROCEDURES.—Any ad-
ministrative sanction imposed under section 110(c)
may be imposed only after notice and opportunity
for an agency hearing on the record in accordance
with sections 554 through 557 of title 5, United
States Code. The imposition of any such administra-
tive sanction shall be subject to judicial review in ac-
cordance with sections 701 through 706 of title 5,
United States Code.
(2) AVAILABILITY OF CHARGING LETTER.—Any
charging letter or other document initiating adminis-
trative proceedings for the imposition of sanctions
for violations of the regulations issued under section
108(a) shall be made available for public inspection
and copying.
(c) COLLECTION.—If any person fails to pay a civil
penalty imposed under section 110(c), the Secretary may
128
ask the Attorney General to bring a civil action in an ap-
propriate district court to recover the amount imposed
(plus interest at currently prevailing rates from the date
of the final order). No such action may be commenced
more than 5 years after the order imposing the civil pen-
alty becomes final. In such an action, the validity, amount,
and appropriateness of such penalty shall not be subject
to review.
(d) IMPOSITION OF TEMPORARY DENIAL ORDERS.—
(1) GROUNDS FOR IMPOSITION.—In any case in
which there is reasonable cause to believe that a per-
son is engaged in or is about to engage in any act
or practice which constitutes or would constitute a
violation of this title, or any regulation, order, or li-
cense issued under this title, including any diversion
of goods or technology from an authorized end use
or end user, or in any case in which a criminal in-
dictment has been returned against a person alleging
a violation of this title or any of the statutes listed
in section 110(f), the Secretary may, without a hear-
ing, issue an order temporarily denying that person’s
United States export privileges (hereafter in this
subsection referred to a ‘‘temporary denial order’’).
A temporary denial order may be effective for no
longer than 180 days, but may be renewed by the
129
Secretary, following notice and an opportunity for a
hearing, for additional periods of not more than 180
days each.
(2) ADMINISTRATIVE APPEALS.—The person or
persons subject to the issuance or renewal of a tem-
porary denial order may appeal the issuance or re-
newal of the temporary denial order, supported by
briefs and other material, to an administrative law
judge who shall, within 15 working days after the
appeal is filed, issue a decision affirming, modifying,
or vacating the temporary denial order. The tem-
porary denial order shall be affirmed if it is shown
that—
(A) there is reasonable cause to believe
that the person subject to the order is engaged
in or is about to engage in any act or practice
which constitutes or would constitute a violation
of this title, or any regulation, order, or license
issued under this title, or
(B) a criminal indictment has been re-
turned against the person subject to the order
alleging a violation of this title or any of the
statutes listed in section 110(f).
The decision of the administrative law judge shall be
final unless, within 10 working days after the date
130
of the administrative law judge’s decision, an appeal
is filed with the Secretary. On appeal, the Secretary
shall either affirm, modify, reverse, or vacate the de-
cision of the administrative law judge by written
order within 10 working days after receiving the ap-
peal. The written order of the Secretary shall be
final and is not subject to judicial review, except as
provided in paragraph (3). The materials submitted
to the administrative law judge and the Secretary
shall constitute the administrative record for pur-
poses of review by the court.
(3) COURT
APPEALS.—An order of the Sec-
retary affirming, in whole or in part, the issuance or
renewal of a temporary denial order may, within 15
days after the order is issued, be appealed by a per-
son subject to the order to the United States Court
of Appeals for the District of Columbia Circuit,
which shall have jurisdiction of the appeal. The
court may review only those issues necessary to de-
termine whether the issuance of the temporary de-
nial order was based on reasonable cause to believe
that the person subject to the order was engaged in
or was about to engage in any act or practice which
constitutes or would constitute a violation of this
title, or any regulation, order, or license issued
131
under this title, or if a criminal indictment has been
returned against the person subject to the order al-
leging a violation of this title or any of the statutes
listed in section 110(f). The court shall vacate the
Secretary’s order if the court finds that the Sec-
retary’s order is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
SEC. 113. ENFORCEMENT.
(a) GENERAL AUTHORITY AND DESIGNATION.—
(1) POLICY
GUIDANCE
ON
ENFORCEMENT.—
The Secretary, in consultation with the Secretary of
the Treasury and the heads of other appropriate de-
partments and agencies, shall be responsible for pro-
viding policy guidance on the enforcement of this
title.
(2) GENERAL AUTHORITIES.—(A) To the extent
necessary or appropriate to the enforcement of this
title or to the imposition of any penalty, forfeiture,
or liability arising under the Export Administration
Act of 1979, officers or employees of the Depart-
ment of Commerce designated by the Secretary and
officers and employees of the United States Customs
Service designated by the Commissioner may exer-
cise the enforcement authorities described in para-
graph (3).
132
(B) In carrying out the enforcement authorities
described in paragraph (3), the Commissioner of
Customs, and employees of the United States Cus-
toms Service designated by the Commissioner, may
make investigations within or outside the United
States and at those ports of entry or exit from the
United States where officers of the United States
Customs Service are authorized by law to carry out
such enforcement responsibilities. Subject to para-
graph (3), the United States Customs Service is au-
thorized, in the enforcement of this title, to search,
detain (after search), and seize commodities or tech-
nology at those ports of entry or exit from the Unit-
ed States where officers of the Customs Service are
authorized by law to conduct such searches, deten-
tions, and seizures, and at those places outside the
United States where the Customs Service, pursuant
to agreements or other arrangements with other
countries, is authorized to perform enforcement ac-
tivities.
(C) In carrying out the enforcement authorities
described in paragraph (3), the Secretary, and offi-
cers and employees of the Department of Commerce
designated by the Secretary, may make investiga-
tions within the United States, and shall conduct,