shall include, but not be limited to, the imposition
of export license fees.
(b) MONITORING.—
(1) IN GENERAL.—In order to carry out the
policy set forth in section 103(4), the Secretary shall
monitor exports, and contracts for exports, of any
commodity (other than a commodity which is subject
to the reporting requirements of section 602 of the
Agricultural Trade Act of 1978 (7 U.S.C. 5712))
when the volume of such exports in relation to do-
mestic supply contributes, or may contribute, to an
increase in domestic prices or a domestic shortage,
and such price increase or shortage has, or may
have, a serious adverse impact on the economy or
any sector thereof. Any such monitoring shall com-
mence at a time adequate to assure that the mon-
itoring will result in a data base sufficient to enable
policies to be developed, in accordance with section
103(4), to mitigate a short supply situation or seri-
ous inflationary price rise or, if export controls are
needed, to permit imposition of such controls in a
timely manner. Information which the Secretary re-
quires to be furnished in effecting such monitoring
shall be confidential, except as provided in para-
graph (2).
(2) REPORTS ON MONITORING.—The results of
monitoring under paragraph (1) shall, to the extent
practicable, be aggregated and included in weekly re-
ports setting forth, with respect to each item mon-
itored, actual and anticipated exports, the destina-
tion by country, and the domestic and worldwide
price, supply, and demand. Such reports may be
made monthly if the Secretary determines that there
is insufficient information to justify weekly reports.
(3) CONSULTATION WITH SECRETARY OF EN-
ERGY.—The Secretary shall consult with the Sec-
retary of Energy to determine whether monitoring or
export controls under this section are warranted
with respect to exports of facilities, machinery, or
equipment normally and principally used, or in-
tended to be used, in the production, conversion, or
transportation of fuels and energy (except nuclear
energy), including, but not limited to—
(A) drilling rigs, platforms, and equipment;
(B) petroleum refineries, and natural gas
processing, liquefaction, and gasification plants;
(C) facilities for production of synthetic
natural gas or synthetic crude oil;
(D) oil and gas pipelines, pumping sta-
tions, and associated equipment; and
(E) vessels for transporting oil, gas, coal,
and other fuels.
(c) PETITIONS FOR MONITORING OR CONTROLS OF
METALLIC MATERIALS.—
(1) IN GENERAL.—(A) Any entity, including a
trade association, firm, or certified or recognized
union or group of workers, that is representative of
an industry or a substantial segment of an industry
that processes metallic materials capable of being re-
cycled may transmit a written petition to the Sec-
retary requesting the monitoring of exports or the
imposition of export controls, or both, with respect
to any such material, in order to carry out the policy
set forth in section 103(4).
(B) Each petition shall be in such form as the
Secretary shall prescribe and shall contain informa-
tion in support of the action requested. The petition
shall include any information reasonably available to
the petitioner indicating that each of the criteria set
forth in paragraph (3)(A) is satisfied.
(2) PUBLICATION OF NOTICE.—Within 15 days
after receipt of any petition described in paragraph
(1), the Secretary shall publish a notice in the Fed-
eral Register. The notice shall—
(A) include the name of the material that
is the subject to the petition;
(B) include the schedule B number of the
material as set forth in the Statistical Classi-
fication of Domestic and Foreign Commodities
Exported from the United States;
(C) indicate whether the petition is re-
questing that controls or monitoring, or both,
be imposed with respect to the exportation of
such material; and
(D) provide that interested persons shall
have a period of 30 days beginning on the date
on which the notice is published to submit to
the Secretary written data, views, or argu-
ments, with or without opportunity for oral
presentation, with respect to the matter in-
volved.
At the request of the petitioner or any other entity
described in paragraph (1)(A) with respect to the
material which is the subject of the petition, or at
the request of any entity representative of producers
or exporters of such material, the Secretary shall
conduct public hearings with respect to the subject
of the petition, in which case the 30-day period may
be extended to 45 days.
(3) DETERMINATION OF MONITORING OR CON-
TROLS.—(A) Within 45 days after the end of the
30- or 45-day period described in paragraph (2), as
the case may be, the Secretary shall determine
whether to impose monitoring or controls, or both,
on the export of the material that is the subject of
the petition in order to carry out the policy set forth
in section 103(4). In making such determination,
the Secretary shall determine whether—
(i) there has been a significant increase, in
relation to a specific period of time, in exports
of such material in relation to domestic supply
and demand;
(ii) there has been a significant increase in
domestic price of such material or a domestic
shortage of such material relative to demand;
(iii) exports of such material are as impor-
tant as any other cause of a domestic price in-
crease or shortage relative to demand found
under clause (ii);
(iv) a domestic price increase or shortage
relative to demand found under clause (ii) has
significantly adversely affected or may signifi-
cantly adversely affect the national economy or
any sector thereof, including a domestic indus-
try; and
(v) monitoring or controls, or both, are
necessary in order to carry out the policy set
forth in section 103(4).
(B) The Secretary shall publish in the Federal
Register a detailed statement of the reasons for the
Secretary’s determination under subparagraph (A)
of whether to impose monitoring or controls, or
both, including the findings of fact in support of
that determination.
(4) PUBLICATION
OF
REGULATIONS.—Within
15 days after making a determination under para-
graph (3) to impose monitoring or controls on the
export of a material, the Secretary shall publish in
the Federal Register proposed regulations with re-
spect to such monitoring or controls. Within 30 days
after the publication of such proposed regulations,
and after considering any public comments on the
proposed regulations, the Secretary shall publish and
implement final regulations with respect to such
monitoring or controls.
(5) CONSOLIDATION OF PETITIONS.—For pur-
poses of publishing notices in the Federal Register
and scheduling public hearings pursuant to this sub-
applicable provisions of law, collect data with respect
to export sales of animal hides and skins.
(2) PROTECTION
OF
STORED
COMMODITIES
FROM FUTURE CONTROLS.—Upon approval of the
Secretary, in consultation with the Secretary of Ag-
riculture, agricultural commodities purchased by or
for use in a foreign country may remain in the Unit-
ed States for export at a later date free from any
quantitative limitations on export which may be im-
posed to carry out the policy set forth in section
103(4) subsequent to such approval. The Secretary
may not grant such approval unless the Secretary
receives adequate assurance and, in conjunction with
the Secretary of Agriculture, finds—
(A) that such commodities will eventually
be exported,
(B) that neither the sale nor export thereof
will result in an excessive drain of scarce mate-
rial and have a serious domestic inflationary
impact,
(C) that storage of such commodities in
the United States will not unduly limit the
space available for storage of domestically
owned commodities, and
(D) that the purpose of such storage is to
establish a reserve of such commodities for later
use, not including resale to or use by another
country.
The Secretary may issue such regulations as may be
necessary to carry out this paragraph.
(3) PROCEDURES FOR IMPOSING CONTROLS.—
(A) If the President imposes export controls on any
agricultural commodity under section 106 or this
section, the President shall immediately transmit a
report on such action to the Congress, setting forth
the reasons for the controls in detail and specifying
the period of time, which may not exceed 1 year,
that the controls are proposed to be in effect. If the
Congress, within 60 days after the date of the re-
ceipt of the report, enacts a joint resolution pursu-
ant to paragraph (4) approving the imposition of the
export controls, then such controls shall remain in
effect for the period specified in the report, or until
terminated by the President, whichever occurs first.
If the Congress, within 60 days after the date of its
receipt of such report, fails to adopt a joint resolu-
tion approving such controls, then such controls
shall cease to be effective upon the expiration of that
60-day period.
(B) The provisions of subparagraph (A) and
paragraph (4) shall not apply to export controls—
(i) which are extended under this title if
the controls, when imposed, were approved by
the Congress under subparagraph (A) and
paragraph (4); or
(ii) which are imposed with respect to a
country as part of the prohibition or curtail-
ment of all exports to that country.
(4) EXPEDITED
PROCEDURES.—(A) For pur-
poses of this paragraph, the term ‘‘joint resolution’’
means only a joint resolution the matter after the
resolving clause of which is as follows: ‘‘That pursu-
ant to section 107(d)(3) of the Export Administra-
tion Act of 1997, the President may impose export
controls as specified in the report submitted to the
Congress on lll.’’, with the blank space being
filled with the appropriate date.
(B) On the day on which a report is submitted
to the House of Representatives and the Senate
under paragraph (3), a joint resolution with respect
to the export controls specified in such report shall
be introduced (by request) in the House by either
the chairman of the Committee on International Re-
lations, for the chairman and the ranking minority
member of the Committee, or by Members of the
House designated by the chairman and ranking mi-
nority member; and shall be introduced (by request)
in the Senate by the majority leader of the Senate,
for the majority leader and the minority leader of
the Senate, or by Members of the Senate designated
by the majority leader and minority leader of the
Senate. If either House is not in session on the day
on which such a report is submitted, the joint reso-
lution shall be introduced in that House, as provided
in the preceding sentence, on the first day thereafter
on which that House is in session.
(C) If the committee of either House to which
a joint resolution has been referred has not reported
the joint resolution at the end of 30 days after its
referral, the committee shall be discharged from fur-
ther consideration of the resolution.
(D) A joint resolution under this paragraph
shall be considered in the Senate in accordance with
the provisions of section 601(b)(4) of the Inter-
national Security Assistance and Arms Export Con-
trol Act of 1976. For the purpose of expediting the
consideration and passage of joint resolutions re-
ported to the House of Representatives by the Com-
mittee on International Relations under this para-
graph, a motion to proceed to the consideration in
the House of any such joint resolution shall be con-
sidered as highly privileged if offered by the chair-
man of the committee or a designee on or after the
third day the report on the joint resolution has been
available to Members pursuant to clause 2(l)(6) of
rule XI of the Rules of the House of Representa-
tives. The motion shall not be subject to debate or
to intervening motion or otherwise subject to points
of order, nor shall it be in order to move to recon-
sider the vote by which the motion is agreed to or
not agreed to. If the motion is agreed to, the joint
resolution shall be considered in the House and de-
batable for not to exceed two hours equally divided
and controlled by the chairman and ranking minor-
ity member of the committee. The previous question
shall be considered as ordered on the joint resolution
to final passage without intervening motion.
(E) In the case of a joint resolution described
in subparagraph (A), if, before the passage by one
House of a joint resolution of that House, that
House receives a resolution with respect to the same
matter from the other House, then—
(i) the procedure in that House shall be
the same as if no joint resolution has been re-
ceived from the other House; but
(ii) the vote on final passage shall be on
the joint resolution of the other House.
(5) COMPUTATION OF TIME PERIODS.—In the
computation of the period of 60 days referred to in
paragraph (3)(A) and the period of 30 days referred
to in paragraph (4)(C), there shall be excluded the
days on which either House of Congress is not in
session because of an adjournment of more than 3
days to a day certain or because of an adjournment
of the Congress sine die.
(6) RULEMAKING
POWER.—The provisions of
this subsection are enacted by the Congress—
(A) as an exercise of the rulemaking power
of the House of Representatives and the Sen-
ate, respectively, and as such, they shall be con-
sidered as part of the rules of each House, re-
spectively, or of that House to which they spe-
cifically apply, and such rules shall supersede
other rules only to the extent that they are in-
consistent therewith; and
(B) with full recognition of the constitu-
tional right of either House to change such
rules (so far as relating to such House) at any
time, in the same manner, and to the same ex-
tent as in the case of any other rule of such
House.
(e) BARTER AGREEMENTS.—
(1) EXEMPTION FROM CONTROLS.—The expor-
tation pursuant to a barter agreement of any com-
modities which may lawfully be exported from the
United States, for any commodities which may law-
fully be imported into the United States, may be ex-
empted, in accordance with paragraph (2), from any
quantitative limitation on exports (other than any
reporting requirement) imposed to carry out the pol-
icy set forth in section 103(4).
(2) CRITERIA FOR EXEMPTION.—The Secretary
shall grant an exemption under paragraph (1) if the
Secretary finds, after consultation with the appro-
priate department or agency of the United States,
that—
(A) for the period during which the barter
agreement is to be performed—
(i) the average annual quantity of the
commodities to be exported pursuant to
the barter agreement will not be required
to satisfy the average amount of such com-
modities estimated to be required annually
by the domestic economy and will be sur-
plus thereto; and
(ii) the average annual quantity of the
commodities to be imported will be less
than the average amount of such commod-
ities estimated to be required annually to
supplement domestic production; and
(B) the parties to such barter agreement
have demonstrated adequately that they intend,
and have the capacity, to perform such barter
agreement.
(3) DEFINITION.—For purposes of this sub-
section, the term ‘‘barter agreement’’ means any
agreement which is made for the exchange, without
monetary consideration, of any commodities pro-
duced in the United States for any commodities pro-
duced outside of the United States.
(4) 
APPLICABILITY.—This 
subsection 
shall
apply only with respect to barter agreements entered
into after September 30, 1979.
(f) EFFECT
OF CONTROLS
ON EXISTING CON-
TRACTS.—
(1) WESTERN RED CEDAR.—Any export con-
trols imposed under section 7(i) of the Export Ad-
ministration Act of 1979 or this section shall not af-
fect any contract to harvest unprocessed western red
cedar from State lands which was entered into be-
fore October 1, 1979, and the performance of which
would make the red cedar available for export.
(2) OTHER
CONTROLS.—Any export controls
imposed under this section on any agricultural com-
modity (including fats, oils, forest products, and ani-
mal hides and skins), or on any fishery product,
shall not affect any contract to export entered into
before the date on which such controls are imposed.
For purposes of this paragraph, the term ‘‘contract
to export’’ includes, but is not limited to, an export
sales agreement and an agreement to invest in an
enterprise which involves the export of commodities
or technology.
(g) OIL EXPORTS
FOR USE
BY UNITED STATES
MILITARY FACILITIES.—For purposes of this section, and
for purposes of any export controls imposed under this
title, shipments of crude oil, refined petroleum products,
or partially refined petroleum products from the United
States for use by the Department of Defense or United
States-supported installations or facilities shall not be con-
sidered to be exports.
SEC. 108. FOREIGN BOYCOTTS.
(a) PROHIBITIONS AND EXCEPTIONS.—
(1) PROHIBITIONS.—In order to carry out the
policies set forth in section 103(9), 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 which is friendly
to the United States and which is not itself the ob-
ject 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, a requirement of, or a re-
quest from or on behalf of the boycotting coun-
try. The mere absence of a business relationship
with or in the boycotted country, with any busi-
ness concern organized under the laws of the
boycotted country, with any national or resident
of the boycotted country, or with any other per-
son, does not indicate the existence of the in-
tent required to establish a violation of regula-
tions issued to carry out this subparagraph.
(B) Refusing, or requiring any other per-
son to refuse, to employ or otherwise discrimi-
nating against any United States person on the
basis of the race, religion, sex, or national ori-
gin of such 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 about whether
any person has, has had, or proposes to have
any business relationship (including a relation-
ship by way of sale, purchase, legal or commer-
cial representation, shipping or other transport,
insurance, investment, or supply) with or in the
boycotted country, with any business concern
organized under the laws of the boycotted coun-
try, with any national or resident of the boy-
cotted country, or with any other person that is
known or believed to be restricted from having
any business relationship with or in the boycott-
ing country. Nothing in this paragraph shall
prohibit the furnishing of normal business in-
formation in a commercial context as defined by
the Secretary.
(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 compliance
with which is prohibited by regulations issued
pursuant to this paragraph, and no United
States person shall, as a result of the applica-
tion 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) complying or agreeing to comply with
requirements—
(i) prohibiting the import of commod-
ities or services from the boycotted country
or commodities produced or services pro-
vided 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 com-
modities 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) complying or agreeing to comply with
import and shipping document requirements
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 no in-
formation knowingly furnished or conveyed in
response to such requirements may be stated in
negative, blacklisting, or similar exclusionary
terms, other than with respect to carriers or
route of shipment as may be permitted by such
regulations in order to comply with precaution-
ary requirements protecting against war risks
and confiscation;
(C) complying or agreeing to comply in the
normal course of business with the unilateral
and specific selection by a boycotting country,
or national or resident thereof, of carriers, in-
surers, suppliers of services to be performed
within the boycotting country, or specific com-
modities which, in the normal course of busi-
ness, are identifiable by source when imported
into the boycotting country;
(D) complying or agreeing to comply with
export requirements of the boycotting country
relating to shipments or transshipment of ex-
ports to the boycotted country, to any business
concern of or organized under the laws of the
boycotted country, or to any national or resi-
dent 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 person to comply with the laws of the
country with respect to such 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, as may be defined by such regula-
tions.
(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 the 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 shall apply 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 as imple-
mented by the regulations issued pursuant to this
subsection, and such regulations shall expressly pro-
vide that the exceptions set forth in paragraph (2)
shall not permit activities or agreements (expressed
or implied by a course of conduct, including a pat-
tern of responses) otherwise prohibited, which are
not within the intent of such exceptions.
(b) ADDITIONAL REGULATIONS AND REPORTS.—
(1) REGULATIONS.—In addition to the regula-
tions issued pursuant to subsection (a), regulations
issued under section 106 shall implement the policies
set forth in section 103(9).
(2) REPORTS BY UNITED STATES PERSONS.—
Such regulations shall require that any United
States person receiving a request for the furnishing
of information, the entering into or implementing of
agreements, or the taking of any other action re-
ferred to in section 103(9) shall report that fact to
the Secretary, together with such other information
concerning such request as the Secretary may re-
quire, for such action as the Secretary considers ap-
propriate for carrying out the policies of that sec-
tion. Such person shall also report to the Secretary
whether such person intends to comply and whether
such person has complied with such 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 commodities or tech-
nology to which such report relates may be kept con-
fidential if the Secretary determines that disclosure
thereof would place the United States person in-
volved at a competitive disadvantage. The Secretary
shall periodically transmit summaries of the infor-
mation contained in such reports to the Secretary of
State for such action as the Secretary of State, in
consultation with the Secretary, considers appro-
priate for carrying out the policies set forth in sec-
tion 103(9).
(c) PREEMPTION.—The provisions of this section and
the regulations issued under this section shall preempt any
law, rule, or regulation which—
(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. 109. PROCEDURES FOR PROCESSING EXPORT LI-
CENSE APPLICATIONS; OTHER INQUIRIES.
(a) 
PRIMARY
RESPONSIBILITY
OF
THE
SEC-
RETARY.—
(1) IN GENERAL.—All export license applica-
tions required under this title shall be submitted by
the applicant to the Secretary. Subject to the proce-
dures provided in this section—
(A) if referral of an application to other
departments or agencies for review is not re-
quired, the Secretary shall, within 9 days after
receiving the application, issue a license or no-
tify the applicant of the intent to deny the ap-
plication; or
(B) if referral of the application to other
departments or agencies for review is required,
the Secretary shall, within 30 days after refer-
ral of any such application to other depart-
ments or agencies—
(i) issue a license;
(ii) notify the applicant of the intent
to deny the application; or
(iii) ensure that the application is sub-
ject to the interagency resolution process
set forth in subsection (d).
(2) RECOMMENDATIONS
OF
OTHER
AGEN-
CIES.—The Secretary shall seek information and
recommendations from the Department of Defense
and other departments and agencies of the United
States that are identified by the President as being
concerned with factors having an important bearing
on exports administered under this title. Such de-
partments and agencies shall cooperate fully and
promptly in rendering information and recommenda-
tions.
(3) PROCEDURES.—In guidance and regulations
that implement this section, the Secretary shall de-
scribe the procedures required by this section, the
responsibilities of the Secretary and of other depart-
ments and agencies in reviewing applications, the
rights of the applicant, and other relevant matters
affecting the review of license applications.
(4) CALCULATION OF PROCESSING TIMES.—In
calculating the processing times set forth in this sec-
tion, the Secretary shall use calendar days, except
that if the final day for a required action falls on a
weekend or holiday, that action shall be taken no
later than the following business day.
(5) RELIABILITY
OF
PARTIES.—In reviewing
applications for export licenses, the Secretary may in
each case consider the reliability of the parties to the
proposed export. In making such an evaluation, the
Secretary may consider all sources of information,
including results of other United States Government
actions, such as actions by the Committee on For-
eign Investment in the United States, investigations
of diversions from authorized end uses or end users,
and intelligence information, except that the consid-
eration of such information in connection with the
evaluation of the reliability of parties shall not au-
thorize the direct or indirect disclosure of classified
information or sources and methods of gathering
classified information and shall not confer a right on
private parties to have access to classified informa-
tion.
(b) INITIAL SCREENING.—
(1) UPON RECEIPT OF APPLICATION.—Upon re-
ceipt of an export license application, the Secretary
shall enter and maintain in the records of the De-
partment of Commerce information regarding the re-
ceipt and status of the application.
(2) INITIAL PROCEDURES.—Promptly upon re-
ceiving any license application, the Secretary shall—
(A) contact the applicant if the application
is improperly completed or if additional infor-
mation is required, and hold the application for
a reasonable time while the applicant provides
the necessary corrections or information, and
such time shall not be included in calculating
the time periods prescribed in this section;
(B) refer the application, including all in-
formation submitted by the applicant, and all
necessary recommendations and analyses by the
Secretary to the Department of Defense and
other departments and agencies identified by
the President under subsection (a)(2); and
(C) ensure that the classification stated on
the application for the export items is correct,
return the application if a license is not re-
quired, and, if referral to other departments or
agencies is not required, grant the application
or notify the applicant of the Secretary’s intent
to deny the application.
In the event that the head of a department or agen-
cy determines that certain types of applications need
not be referred to the department or agency, such
department or agency head shall notify the Sec-
retary of the specific types of such applications that
the department or agency does not wish to review.
(c) ACTION BY OTHER DEPARTMENTS AND AGEN-
CIES.—
(1) REFERRAL TO OTHER AGENCIES.—The Sec-
retary shall promptly refer license applications to de-
partments and agencies under subsection (b) to
make recommendations and provide information to
the Secretary.
(2) RESPONSIBILITY
OF
REFERRAL
AGEN-
CIES.—The Department of Defense and other re-
viewing departments and agencies shall organize
their resources and units to plan for the prompt and
expeditious internal dissemination of export license
applications, if necessary, so as to avoid delays in re-
sponding to the referral of applications.
(3) ADDITIONAL
INFORMATION
REQUESTS.—
Each department or agency to which a license appli-
cation is referred shall specify to the Secretary any
information that is not in the application that would
be required for the department or agency to make
a determination with respect to the application, and
the Secretary shall promptly request such informa-
tion from the applicant. The time that may elapse
between the date the information is requested by
that department or agency and the date the infor-
mation is received by that department or agency
shall not be included in calculating the time periods
prescribed in this section.
(4) TIME PERIOD FOR ACTION BY REFERRAL
DEPARTMENTS
AND
AGENCIES.—Within 30 days
after receiving a referral of an application under this
section, the department or agency concerned shall
provide the Secretary with a recommendation either
to approve the license or to deny the license. A rec-
ommendation that the Secretary deny a license shall
include a statement of reasons for the recommenda-
tion that are consistent with the provisions of this
title, and shall cite both the specific statutory and
the regulatory bases for the recommendation. A de-
partment or agency that fails to provide a rec-
ommendation in accordance with this paragraph
within that 30-day period shall be deemed to have
no objection to the decision of the Secretary on the
application.
(d) INTERAGENCY RESOLUTION.—
(1) INITIAL RESOLUTION.—The Secretary shall
establish, select the chairperson of, and determine
procedures for an interagency committee to review
initially all license applications on which the depart-
ments and agencies reviewing the applications under
this section are not in agreement. The chairperson
of such committee shall consider the recommenda-
tions of the departments and agencies reviewing a
particular application and inform them of his or her
decision on the application, which may include a de-
cision that the particular application requires further
consideration under the procedures established
under paragraph (2). An application may also be re-
ferred to further consideration under the procedures
established under paragraph (2) if an appeal from
the chairperson’s decision is made in writing by an
official of the department or agency concerned who
is appointed by the President by and with the advice
and consent of the Senate, or an officer properly
acting in such capacity.
(2) FURTHER
RESOLUTION.—The President
shall establish a process for the further review and
determination of export license applications pursuant
to a decision by the chairperson under paragraph (1)
or an appeal by a department or agency under para-
graph (1). Such process shall—
(A) be chaired by the Secretary or his or
her designee;
(B) ensure that license applications are re-
solved or referred to the President no later than
90 days after the date the license application is
initially received by the Secretary;
(C) provide that a department or agency
dissenting from the decision reached under sub-
paragraph (B) may appeal the decision to the
President; and
(D) provide that a department or agency
that fails to take a timely position, citing the
specific statutory and regulatory bases for a de-
nial, shall be deemed to have no objection to the
pending decision.
(e) ACTIONS BY THE SECRETARY IF APPLICATION
DENIED.—In cases where the Secretary has determined
that an application should be denied, the applicant shall
be informed in writing of—
(1) the determination to deny;
(2) the specific statutory and regulatory bases
for the proposed denial;
(3) what, if any, modifications in or restrictions
on the items for which the license was sought would
allow such export to be compatible with export con-
trols imposed under this title, and which officer or
employee of the Department of Commerce would be
in a position to discuss modifications or restrictions
with the applicant and the specific statutory and
regulatory bases for imposing such modifications or
restrictions;
(4) to the extent consistent with the national
security and foreign policy of the United States, the
specific considerations that led to the determination
to deny the application; and
(5) the availability of appeal procedures.
The Secretary shall allow the applicant 20 days to respond
to the determination before the license application is de-
nied.
(f) EXCEPTIONS FROM REQUIRED TIME PERIODS.—
The following actions related to processing an application
shall not be included in calculating the time periods pre-
scribed in this section:
(1) AGREEMENT OF THE APPLICANT.—Delays
upon which the Secretary and the applicant mutu-
ally agree.
(2) PRELICENSE CHECKS.—A prelicense check
that may be required to establish the identity and
reliability of the recipient of items controlled under
this title, if—
(A) the need for the prelicense check is de-
termined by the Secretary, or by another de-
partment or agency if the request for the
prelicense check is made by such department or
agency;
(B) the request for the prelicense check is
sent by the Secretary within 5 days after the
determination that the prelicense check is re-
quired; and
(C) the analysis of the result of the
prelicense check is completed by the Secretary
within 5 days.
(3) REQUESTS FOR GOVERNMENT-TO-GOVERN-
MENT ASSURANCES.—Any request by the Secretary
or another department or agency for government-to-
government assurances of suitable end uses of items
approved for export, when failure to obtain such as-
surances would result in rejection of the application,
if—
(A) the request for such assurances is sent
to the Secretary of State within 5 days after
the determination that the assurances are re-
quired;
(B) the Secretary of State initiates the re-
quest of the relevant government within 10
days thereafter; and
(C) the license is issued within 5 days
after the Secretary receives the requested assur-
ances.
Whenever a prelicense check described in paragraph
(2) and assurances described in this paragraph are
not requested within the time periods set forth
therein, then the time expended for such prelicense
check or assurances shall be included in calculating
the time periods established by this section.
(4) MULTILATERAL REVIEW.—Multilateral re-
view of a license application to the extent that such
multilateral review is required by a relevant multilat-
eral regime.
(5) 
CONGRESSIONAL
NOTIFICATION.—Such
time as is required for mandatory congressional noti-
fications under this title.
(6) CONSULTATIONS.—Consultation with other
governments, if such consultation is provided for by
a relevant multilateral regime as a precondition for
approving a license.
(g) APPEALS.—
(1) IN GENERAL.—The Secretary shall establish
appropriate procedures for any applicant to appeal
to the Secretary the denial of an export license ap-
plication or other administrative action under this
title.
(2) FILING OF PETITION.—In any case in which
any action prescribed in this section is not taken on
a license application within the time periods estab-
lished by this section (except in the case of a time
period extended under subsection (f) of which the
applicant is notified), the applicant may file a peti-
tion with the Secretary requesting compliance with
the requirements of this section. When such petition
is filed, the Secretary shall take immediate steps to
correct the situation giving rise to the petition and
shall immediately notify the applicant of such steps.
(3) BRINGING COURT ACTION.—If, within 20
days after a petition is filed under paragraph (2),
the processing of the application has not been
brought into conformity with the requirements of
this section, or the application has been brought into
conformity with such requirements but the Secretary
has not so notified the applicant, the applicant may
bring an action in an appropriate United States dis-
trict court for an order requiring compliance with
the time periods required by this section. The Unit-
ed States district courts shall have jurisdiction to
provide such relief, as appropriate.
(h) CLASSIFICATION REQUESTS AND OTHER INQUIR-
IES.—
(1) CLASSIFICATION REQUESTS.—In any case
in which the Secretary receives a written request
asking for the proper classification of an item on the
control index, the Secretary shall, within 14 days
after receiving the request, inform the person mak-
ing the request of the proper classification.
(2) OTHER INQUIRIES.—In any case in which
the Secretary receives a written request for informa-
tion about the applicability of licensing requirements
under this title to a proposed export transaction or
series of transactions, the Secretary shall, within 30
days after receiving the request, reply with that in-
formation to the person making the request.
SEC. 110. VIOLATIONS.
(a) CRIMINAL PENALTIES.—
(1) VIOLATIONS BY AN INDIVIDUAL.—Except as
provided in paragraph (3), any individual who know-
ingly violates or conspires to or attempts to violate
any provision of this title or any regulation, license,
or order issued under this title shall be fined not
more than 5 times the value of the exports involved
or $500,000, whichever is greater, or imprisoned not
more than 10 years, or both.
(2) VIOLATIONS BY A PERSON OTHER THAN AN
INDIVIDUAL.—Except as provided in paragraph (3),
any person other than an individual who knowingly
violates or conspires to or attempts to violate any
provision of this title or any regulation, license, or
order issued under this title shall be fined not more
than 10 times the value of the exports involved or
$1,000,000, whichever is greater.
(3) ANTIBOYCOTT VIOLATIONS.—
(A) Any individual who knowingly violates
or conspires to or attempts to violate any regu-
lation or order issued under section 108 shall
be fined, for each violation, not more than 5
times the value of the exports involved or
$250,000, whichever is greater, or imprisoned
not more than 10 years, or both.
(B) Any person other than an individual
who knowingly violates or conspires to or at-
tempts to violate any regulation or order issued
under section 108 shall be fined, for each viola-
tion, not more than 5 times the value of the ex-
ports involved or $500,000, whichever is great-
er.
(b) FORFEITURE OF PROPERTY INTEREST AND PRO-
CEEDS.—
(1) FORFEITURE.—Any person who is convicted
under subsection (a)(1) or (2) shall, in addition to
any other penalty, forfeit to the United States—
(A) any of that person’s interest in, secu-
rity of, claim against, or property or contractual
rights of any kind in the commodities or tan-
gible items that were the subject of the viola-
tion;
(B) any of that person’s interest in, secu-
rity of, claim against, or property or contractual
rights of any kind in tangible property 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 con-
stituting, or derived from, any proceeds ob-
tained 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-
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 the violation is in connection
with the export of commodities or technology
controlled under this title, any regulation, li-
cense or order issued under the International
Emergency Economic Powers Act, or defense
articles or defense services 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
1997’’.
(2) Section 81(a)(1) of the Arms Export Control Act
(22 U.S.C. 2798(a)(1)) is amended—
(A) in subparagraphs (A) and (B) by inserting
‘‘under this Act’’ after ‘‘United States’’ the second
place it appears in each subparagraph, and
(B) in subparagraph (C), by striking ‘‘1979’’
and inserting ‘‘1996’’.
(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.
107
(d) CHEMICAL
AND BIOLOGICAL WEAPONS PRO-
LIFERATION SANCTIONS.—
(1) IMPOSITION OF SANCTIONS.—
(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.
108
(B) COUNTRIES, PROJECTS, OR ENTITIES
RECEIVING
ASSISTANCE.—Subparagraph 
(A)
applies in the case of—
(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.
109
(C) PERSONS AGAINST WHICH SANCTIONS
ARE TO BE IMPOSED.—Sanctions shall be im-
posed pursuant to subparagraph (A) on—
(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
110
consultations immediately with the government
with primary jurisdiction over that foreign per-
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
111
paragraph (1)(A), on the status of consultations
with the appropriate government under this
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—
112
(I) under existing contracts or
subcontracts, including the exercise of
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,
113
(II) component parts, but not
finished products, essential to United
States products or production, or
(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.—
114
(A) CRITERION FOR WAIVER.—The Presi-
dent may waive the application of any sanction
imposed on any person pursuant to this sub-
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
115
(B) a corporation, partnership, or other
entity which is created or organized under the
laws of a foreign country or which has its prin-
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).
116
(ii) The sanctions which apply to a United
States person under clause (i) 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 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
117
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
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-
118
nology, subject to the jurisdiction of the
United States under this title,
(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
119
person of items the export of which is con-
trolled under this title.
(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.
120
(C) EFFECT OF ENFORCEMENT ACTIONS
BY MTCR ADHERENTS.—Sanctions set forth in
subparagraph (A) may not be imposed under
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
121
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-
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—
122
(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.
(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-
123
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-
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
124
(IV) information and technology
essential to United States products or
production.
(3) DEFINITIONS.—For purposes of this sub-
section—
(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
130
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
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.
148
by and with the advice and consent of the Senate,
as of such date of enactment.
(e) ISSUANCE OF REGULATIONS.—The President and
the Secretary may issue such regulations as are necessary
to carry out this title. Any such regulations the purpose
of which is to carry out section 105, 106, or 111(a) may
be issued only after the regulations are submitted for re-
view to such departments or agencies as the President con-
siders appropriate. The Secretary shall consult with the
appropriate export advisory committee appointed under
section 104(f) in formulating regulations under this title.
The second sentence of this subsection does not require
the concurrence or approval of any official, department,
or agency to which such regulations are submitted.
(f) AMENDMENTS
TO REGULATIONS.—If the Sec-
retary proposes to amend regulations issued under this
title, the Secretary shall report to the Committee on Bank-
ing, Housing, and Urban Affairs of the Senate and the
Speaker of the House of Representatives on the intent and
rationale of such amendments. Such report shall evaluate
the cost and burden to the United States exporters of the
proposed amendments in relation to any enhancement of
licensing objectives. The Secretary shall consult with the
appropriate export advisory committees appointed under