142
penalty provided in section 38(c) of the Arms Ex-
port Control Act.
(2) VIOLATIONS BY FOREIGN PERSONS.—(A) If
the President determines that a foreign person, on
or after the date of the enactment of this Act, with
requisite knowledge contributed to the efforts of any
government, group, entity, or project to use, design,
develop, produce, stockpile, or otherwise acquire
chemical or biological weapons or missiles—
(i) through the export or transfer of—
(I) any item on the MTCR Annex,
whether or not of United States origin, or
(II) any item on the list established
under subsection (a)(1) of this section or
section 81(a) of the Arms Export Control
Act, whether or not of United States ori-
gin,
(ii) by conspiring or attempting to engage
in such export or transfer or,
(iii) by facilitating any export or transfer
described in clause (i) by any other person,
then the President shall impose, for a period of 2
years, the sanctions described in subparagraph (B)
on the entities described in paragraph (3).
143
(B) The sanctions referred to in subparagraph
(A) are the following:
(i) All export licenses under this title for
items controlled under section 105, or items
controlled under section 106 that meet the re-
quirements of section 105(a)(1)(A) or (B), and
all export licenses under the Arms Export Con-
trol Act for items on the United States Muni-
tions List, shall be denied to the sanctioned en-
tity.
(ii) The United States Government shall
not procure, or enter into any contract for the
procurement of, any services, commodities,
technology, or other products from or produced
by the sanctioned entity.
(iii) Imports of all products from or pro-
duced by the sanctioned entity shall be prohib-
ited.
(3) ENTITIES AGAINST WHICH SANCTIONS ARE
IMPOSED.—The President shall impose sanctions
under paragraphs (1) and (2) on—
(A) the person that committed the conduct
that is the subject of the determination giving
rise to the sanctions;
144
(B) any successor of a person or entity de-
scribed in subparagraph (A);
(C) any foreign person or United States
person that is a parent or subsidiary of a per-
son or entity described in subparagraph (A), if
that parent or subsidiary with requisite knowl-
edge assisted in the activities which are the
basis of that determination; and
(D) any foreign person or United States
person that is an affiliate of a person or entity
described in subparagraph (A), if that affiliate
with requisite knowledge assisted in the activi-
ties which were the basis of that determination
and if that affiliate is controlled in fact by that
person or entity.
For purposes of this section, any person or entity
described in subparagraph (A), (B), (C), or (D)
shall be referred to as a ‘‘sanctioned entity’’.
(4) EXEMPTION OF CERTAIN EXPORTS FROM
SANCTIONS.—The 
requirement 
in 
paragraph
(1)(B)(i) and (2)(B)(i) that licenses to export items
controlled under section 105 or 106 be denied shall
not apply to items which require individual validated
licenses solely by virtue of the imposition of controls
under the Enhanced Proliferation Control Initiative
145
regulations set forth in section 778.7(c) of title 15,
Code of Federal Regulations.
(5) EXEMPTION FOR MTCR ADHERENTS.—
(A) EXEMPTION.—Paragraphs (1) and (2)
do not apply with respect to any export or
transfer—
(i) that is authorized by the laws of
an MTCR adherent, if such authorization
is not obtained by misrepresentation or
fraud; or
(ii) to an end user in a country that
is an MTCR adherent.
(B) DEFINITION.—For purposes of this
paragraph, the term ‘‘MTCR adherent’’ has the
meaning 
given 
that 
term 
in 
subsection
(a)(2)(D).
(6) CONSULTATION
WITH
AND
ACTIONS
BY
FOREIGN GOVERNMENT OF JURISDICTION.—
(A) CONSULTATIONS.—If the President
makes a determination described in paragraph
(2) with respect to a foreign person, the Con-
gress urges the President to initiate consulta-
tions immediately with the government with pri-
mary jurisdiction over that foreign person with
146
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 up to 90 days. Following these
consultations, the President shall impose sanc-
tions unless the President determines and cer-
tifies to the Congress that that government has
taken specific and effective actions, including
appropriate penalties, to terminate the involve-
ment of the foreign person in the activities de-
scribed in paragraph (2). The President may
delay the imposition of sanctions for up to an
additional 90 days if the President determines
and certifies to the Congress that that govern-
ment is in the process of taking the actions de-
scribed in the preceding sentence.
(C) REPORT
TO
CONGRESS.—Not later
than 90 days after making a determination
under paragraph (2), the President shall submit
to the Committee on Foreign Relations and the
Committee on Governmental Affairs of the Sen-
ate and the Committee on International Rela-
147
tions of the House of Representatives a report
on the status of consultations with the appro-
priate government under this paragraph, and
the basis for any determination under subpara-
graph (B) that such government has taken spe-
cific and effective actions.
(7) EFFECT OF ENFORCEMENT ACTIONS BY RE-
GIME ADHERENTS.—
(A) EXEMPTION FROM SANCTIONS.—Sanc-
tions set forth in paragraph (1) or (2) may not
be imposed under this subsection on a person
with respect to acts described in either such
paragraph or, if such sanctions are in effect
against a person on account of such acts, such
sanctions shall be terminated, if the government
of a regime adherent other than the United
States is taking judicial or other enforcement
action against that person with respect to such
acts, or that person has been found by the gov-
ernment of a regime adherent to be innocent of
wrongdoing with respect to such acts.
(B) REGIME
ADHERENT
DEFINED.—For
purposes of subparagraph (A), a ‘‘regime ad-
herent’’ is a country that is a member of a mul-
tilateral regime that controls the export or
148
transfer giving rise to the sanctions, or that,
pursuant to an international understanding to
which the United States is a party, controls the
export or transfer in accordance with the cri-
teria and standards set forth in the regime.
(8) REQUISITE
KNOWLEDGE
DEFINED.—For
purposes of this subsection, the term ‘‘requisite
knowledge’’ means situations in which a person
‘‘knows’’, as ‘‘knowing’’ is defined in section 104 of
the Foreign Corrupt Practices Act of 1977 (15
U.S.C. 78dd–2).
(9) FOREIGN PERSON DEFINED FOR CERTAIN
EXPORTS.—(A) For purposes of any determination
under paragraph (2)(A) with respect to an export or
transfer of an item on the MTCR Annex, the term
‘foreign person’, in addition to the meaning set forth
in section 116(13), means, in the case of countries
with nonmarket economies (other than former mem-
bers of the Warsaw Pact)—
(i) all activities of the government of any
such country relating to the development or
production of any missile equipment or tech-
nology; and
(ii) all activities of that government affect-
ing the development or production of elec-
149
tronics, space systems or equipment, and mili-
tary aircraft.
(B) As used in subparagraph (A), the term
‘‘missile equipment or technology’ means those items
listed in category I or II of the MTCR Annex.
(d) SANCTIONS AGAINST COUNTRIES FOR USE OF
CHEMICAL OR BIOLOGICAL WEAPONS.—
(1) DETERMINATION.—
(A) IN
GENERAL.—Whenever persuasive
information becomes available to the executive
branch indicating the substantial possibility
that, on or after the date of the enactment of
this Act, the government of a foreign country
has made substantial preparation to use or has
used chemical or biological weapons in violation
of international law or has used lethal chemical
or biological weapons against its own nationals,
the President shall, within 60 days after the re-
ceipt of such information by the executive
branch, determine whether that government, on
or after such date of enactment, has used chem-
ical or biological weapons in violation of inter-
national law, or has used lethal chemical or bio-
logical weapons against its own nationals.
150
(B) MATTERS
TO
BE
CONSIDERED.—In
making the determination under subparagraph
(A), the President shall consider the following:
(i) All physical and circumstantial evi-
dence available bearing on the possible use
of chemical or biological weapons.
(ii) All information provided by al-
leged victims, witnesses, and independent
observers.
(iii) The extent of the availability of
the weapons in question to the purported
user.
(iv) All official and unofficial state-
ments bearing on the possible use of such
weapons.
(v) Whether, and to what extent, the
government in question is willing to honor
a request from the Secretary General of
the United Nations to grant timely access
to a United Nations fact-finding team to
investigate the possibility of chemical or bi-
ological weapons use or to grant such ac-
cess to other legitimate outside parties.
(2) DETERMINATION TO BE REPORTED TO CON-
GRESS.—Upon making a determination under para-
151
graph (1), the President shall promptly report that
determination to the Congress. If the determination
is that a foreign government has used such weapons
as described in that paragraph, the report shall
specify the sanctions to be imposed pursuant to
paragraph (4).
(3) CONGRESSIONAL REQUESTS; REPORT.—
(A) REQUEST.—The Chairman of the
Committee on Foreign Relations of the Senate
(upon consultation with the ranking minority
member of such committee) or the Chairman of
the Committee on International Relations of the
House of Representatives (upon consultation
with the ranking minority member of such com-
mittee) may at any time request the President
to consider whether a particular foreign govern-
ment, on or after the date of the enactment of
this Act, has used chemical or biological weap-
ons in violation of international law or has used
lethal chemical or biological weapons against its
own nationals.
(B) REPORT
TO
CONGRESS.—Not later
than 60 days after receiving such a request, the
President shall provide to the Chairman of the
Committee on Foreign Relations of the Senate
152
and the Chairman of the Committee on Inter-
national Relations of the House of Representa-
tives a written report on the information held
by the executive branch which is pertinent to
the issue of whether the specified government,
on or after the date of the enactment of this
Act, has used chemical or biological weapons in
violation of international law or has used lethal
chemical or biological weapons against its own
nationals. The report under this subparagraph
shall contain an analysis of each of the items
enumerated in paragraph (1)(B).
(4) MANDATORY
SANCTIONS
FOR
USE
OF
CHEMICAL OR BIOLOGICAL WEAPONS.—The follow-
ing sanctions shall be imposed for a minimum of 2
years in the event the President makes an affirma-
tive determination under paragraph (1) with respect
to the government of a foreign country:
(A) FOREIGN
ASSISTANCE.—The United
States Government shall terminate assistance to
that country under the Foreign Assistance Act
of 1961, except for urgent humanitarian assist-
ance and food or other agricultural commodities
or products.
153
(B) ARMS
SALES.—The United States
Government shall—
(i) terminate sales to that country
under the Arms Export Control Act of any
defense articles, defense services, or design
and construction services; and
(ii) terminate and deny licenses for
the export to that country of any item on
the United States Munitions list.
(C) ARMS SALES FINANCING.—The United
States Government shall terminate all foreign
military financing for that country under the
Arms Export Control Act.
(D) DENIAL OF UNITED STATES GOVERN-
MENT
CREDIT
OR
OTHER
FINANCIAL
ASSIST-
ANCE.—The United States Government shall
deny to that country any credit, credit guaran-
tees, or other financial assistance by any de-
partment, agency, or instrumentality of the
United States Government, including the Ex-
port-Import Bank of the United States.
(E) EXPORTS
OF
NATIONAL
SECURITY-
SENSITIVE ITEMS.—The authorities of this title
shall be used to prohibit the export to that
country of any commodities or technology con-
154
trolled or prohibited for export under section
106(i).
(F) IMPORTS.—There shall be a prohibi-
tion on the importation into the United States
of goods that are the growth, produce, or man-
ufacture of that country. The President shall
determine the type and volume of imports to be
prohibited, taking into consideration the volume
of exports prohibited under subparagraph (E).
(5) ADDITIONAL SANCTIONS IF CERTAIN CONDI-
TIONS
NOT
MET.—Unless, within 3 months after
making a determination under paragraph (1) with
respect to the government of a foreign country, the
President determines and certifies, in writing, to the
Congress that—
(A) the government is no longer using
chemical or biological weapons in violation of
international law or using lethal chemical or bi-
ological weapons against its own nationals,
(B) the government has provided reliable
assurances that it will not, in the future, en-
gage in any such activities, and
(C) the government is willing to allow on-
site inspections by United Nations observers or
other internationally recognized, impartial ob-
155
servers, or other reliable means exist, to ensure
that government is not using chemical or bio-
logical weapons in violation of international law
and is not using lethal chemical or biological
weapons against its own nationals,
then the President, after consultation with the Con-
gress, shall impose on that country for a period of
at least 2 years the sanctions set forth in at least
3 of subparagraphs (A) through (F) of paragraph
(6).
(6) ADDITIONAL
SANCTIONS
FOR
USE
OF
CHEMICAL
OR
BIOLOGICAL
WEAPONS.—The sanc-
tions referred to in paragraph (5) are the following:
(A) MULTILATERAL DEVELOPMENT BANK
ASSISTANCE.—The United States Government
shall oppose, in accordance with section 701 of
the International Financial Institutions Act (22
U.S.C. 262d), the extension of any loan or fi-
nancial or technical assistance to the foreign
country by international financial institutions.
(B) BANK
LOANS.—The United States
Government shall prohibit any United States
bank from making any loan or providing any
credit to the government of that country, except
for loans or credits for the purpose of purchas-
157
(II) Within 10 days after the date of
notification 
of 
a 
government 
under
subclause (I), the Secretary of Transpor-
tation shall take all steps necessary to sus-
pend at the earliest possible date the au-
thority of any foreign air carrier owned or
controlled, directly or indirectly, by that
government to engage in foreign air trans-
portation to or from the United States,
notwithstanding any agreement relating to
air services.
(ii)(I) The President may direct the
Secretary of State to terminate any air
service agreement between the United
States and that country, in accordance
with the provisions of that agreement.
(II) Upon termination of an agree-
ment under this clause, the Secretary of
Transportation shall take such steps as
may be necessary to revoke at the earliest
possible date the right of any foreign air
carrier owned or controlled, directly or in-
directly, by the government of that country
to engage in foreign air transportation to
or from the United States.
158
(iii) The Secretary of Transportation
may provide for such exceptions from
clauses (i) and (ii) as the Secretary consid-
ers necessary to provide for emergencies in
which the safety of an aircraft or its crew
or passengers is threatened.
(iv) For purposes of this subpara-
graph, the terms ‘‘air transportation’’, ‘‘air
carrier’’, ‘‘foreign air carrier’’, and ‘‘for-
eign air transportation’’ have the meanings
given those terms in section 101 of the
Federal Aviation Act of 1958 (49 U.S.C.
App. 1301).
(e) REMOVAL OF SANCTIONS.—
(1) FOR VIOLATIONS UNDER SUBSECTION (c).—
The President shall remove the sanctions imposed
under paragraph (1) or (2) of subsection (c) if the
President determines and so certifies to the Con-
gress, after the end of the 12-month period begin-
ning on the date on which the sanctions were ini-
tially imposed, that—
(A) reliable information indicates that—
(i) the United States person with re-
spect to which the determination was made
159
under subsection (c)(1) has ceased all ac-
tivities that gave rise to the sanctions; or
(ii) the foreign person with respect to
which the determination was made under
subsection (c)(2) has ceased to contribute
to the efforts of any government, group,
entity, or project to use, design, develop,
produce, stockpile, or otherwise acquire
chemical or biological weapons or missiles;
and
(B) the President has received reliable as-
surances from that United States person or for-
eign person that such person will not, in the fu-
ture, perform any of the actions described in
subsection (c)(1) or (2) (as the case may be).
(2) FOR
VIOLATIONS
UNDER
SUBSECTION
(d).—The President shall remove the sanctions im-
posed with respect to a country under paragraph (4)
or (6) of subsection (d) if the President determines
and so certifies to the Congress, after the end of the
12-month period beginning on the date on which
such sanctions were initially imposed, that—
(A) the government of that country has
provided reliable assurances that it will not use
chemical or biological weapons in violation of
160
international law and will not use lethal chemi-
cal or biological weapons against its own na-
tionals;
(B) the government is not making prepara-
tions to use chemical or biological weapons in
violation of international law or to use lethal
chemical or biological weapons against its own
nationals;
(C) the government is willing to allow on-
site inspections by United Nations observers or
other internationally recognized, impartial ob-
servers to verify that it is not making prepara-
tions to use chemical or biological weapons in
violation of international law or to use lethal
chemical or biological weapons against its own
nationals, or other reliable means exist to verify
that it is not making such preparations; and
(D) the government is making restitution
to those affected by any use of chemical or bio-
logical weapons in violation of international law
or by any use of lethal chemical or biological
weapons against its own nationals.
(3) AUTHORITY TO REVOKE IMPORT SANCTIONS
IN CERTAIN CIRCUMSTANCES.—The President may
revoke any import sanction imposed under sub-
161
section (c) or (d) if the President determines, as a
result of applicable international dispute settlement
proceedings, that the imposition of such sanctions is
inconsistent with international legal obligations of
the United States and that it is appropriate under
the circumstances to comply with such obligations.
(f) WAIVERS FOR VIOLATIONS UNDER SUBSECTION
(c).—
(1) WAIVER.—The President may waive the im-
position of sanctions under paragraph (1) or (2) of
subsection (c) with respect to a product or service if
the President certifies to the Congress that—
(A) the product or service is essential to
the national security of the United States; and
(B) the sanctioned entity is a sole source
supplier of the product or service, the product
or service is not available from any alternative
reliable supplier, and the need for the product
or service cannot be met in a timely manner by
improved manufacturing processes or techno-
logical developments.
(2) ADDITIONAL WAIVER.—(A) The President
may waive the imposition of any sanction under sub-
section (c)(2) if the President determines such waiv-
162
er is essential to the national security of the United
States.
(B) If the President decides to apply the waiver
described in subparagraph (A), the President shall
so notify the Congress not less than 20 days before
issuing the waiver. Such notification shall include a
report fully articulating the rationale and cir-
cumstances which led the President to exercise the
waiver authority.
(3) EXCEPTIONS.—The President shall not
apply the sanction under subsection (c)(2) prohibit-
ing the importation of the products of a sanctioned
entity—
(A) in the case of procurement of defense
articles or defense services—
(i) under existing contracts or sub-
contracts, including the exercise of options
for production quantities to satisfy require-
ments essential to the national security of
the United States;
(ii) if the President determines that
the entity to which the sanctions would be
applied is a sole source supplier of the de-
fense articles and services, that the defense
articles or services are essential to the na-
163
tional security of the United States, and
that alternative sources are not readily or
reasonably available; or
(iii) if the President determines that
such articles or services are essential to the
national security of the United States
under defense coproduction agreements or
Programs of Cooperation of the North At-
lantic Treaty Organization;
(B) to products or services provided under
contracts entered into before the date on which
the President publishes his intention to impose
the sanctions; or
(C) to—
(i) spare parts;
(ii) components parts, but not finished
products, essential to United States prod-
ucts or production;
(iii) routine services and maintenance
of products, to the extent that alternative
sources are not readily or reasonably avail-
able; or
(iv) information or technology essen-
tial to United States products or produc-
tion.
164
(g) WAIVERS OF VIOLATIONS UNDER SUBSECTION
(d).—
(1) CRITERIA
FOR
WAIVER.—The President
may waive the application of any sanction imposed
with respect to a country under paragraph (4) or (6)
of subsection (d)—
(A) if—
(i) in the case of any sanction other
than a sanction specified in subsection
(d)(4)(F) or (d)(6)(C)(ii) (relating to im-
port restrictions) or (d)(6)(D) (relating to
the downgrading or suspension of diplo-
matic relations), the President determines
and certifies to the Congress that such
waiver is essential to the national security
interests of the United States, and the
President notifies the Committee on For-
eign Relations of the Senate and the Com-
mittee on International Relations of the
House of Representatives of his determina-
tion and certification at least 15 days be-
fore the waiver takes effect, in accordance
with 
the 
procedures 
applicable 
to
reprogramming notifications under section
165
634A of the Foreign Assistance Act of
1961; or
(ii) in the case of any sanction speci-
fied in subsection (d)(4)(F) or (d)(6)(C)(ii)
(relating to import restrictions), the Presi-
dent determines and certifies to the Con-
gress that such waiver is essential to the
national security interests of the United
States, and the President notifies the Com-
mittee on Finance of the Senate and the
Committee on Ways and Means and the
Committee on International Relations of
the House of Representatives of his deter-
mination and certification at least 15 days
before the waiver takes effect; or
(B) if the President determines and cer-
tifies to the Congress that there has been a fun-
damental change in the leadership and policies
of the government of that country, and if the
President notifies the Congress at least 20 days
before the waiver takes effect.
(2) REPORT.—In the event that the President
decides to exercise the waiver authority provided in
paragraph (1) with respect to a country, the Presi-
dent’s notification to the Congress under such para-
166
graph shall include a report fully articulating the ra-
tionale and circumstances which led the President to
exercise that waiver authority, including a descrip-
tion of the steps which the government of that coun-
try has taken to satisfy the conditions set forth in
subparagraphs (A) through (D) of subsection (e)(2).
(h) CONTRACT SANCTITY.—
(1) SANCTIONS
NOT
APPLIED
TO
EXISTING
CONTRACTS.—(A) A sanction described in subpara-
graph (D), (E), or (F) of subsection (d)(4) or in any
of subparagraphs (A) through (C) of subsection
(d)(6) shall not apply to any activity pursuant to
any contract or international agreement entered into
before the date of the presidential determination
under subsection (d)(1) unless the President deter-
mines, on a case-by-case basis, that to apply such
sanction to that activity would prevent the perform-
ance of a contract or agreement that would have the
effect of assisting a country in using chemical or bi-
ological weapons in violation of international law or
in using lethal chemical or biological weapons
against its own nationals.
(B) The same restrictions of section 114(l) (re-
lating to contract sanctity) which are applicable to
exports prohibited under this title shall apply to ex-
167
ports prohibited under subsection (d)(4)(E) or
(d)(6)(C)(i). For purposes of this subparagraph, any
contract or agreement the performance of which (as
determined by the President) would have the effect
of assisting a foreign government in using chemical
or biological weapons in violation of international
law or in using chemical or biological weapons
against its own nationals shall be treated as con-
stituting a breach of the peace that poses a serious
and direct threat to the strategic interest of the
United States, within the meaning of subparagraph
(A) of section 114(l)(2).
(2) SANCTIONS
APPLIED
TO
EXISTING
CON-
TRACTS.—The sanctions described in subparagraphs
(A), (B), and (C) of subsection (d)(4) shall apply to
contracts, agreements, and licenses without regard
to the date the contract or agreement was entered
into or the license was issued (as the case may be),
except that such sanctions shall not apply to any
contract or agreement entered into or license issued
before the date of the presidential determination
under subsection (d)(1) if the President determines
that the application of such sanction would be det-
rimental to the national security interests of the
United States.
168
(i) PROTECTION OF CLASSIFIED INFORMATION.—To
the extent practicable, reports submitted under this sec-
tion should be based on unclassified information. Portions
of such reports may be classified.
SEC. 112. ADMINISTRATIVE AND JUDICIAL REVIEW.
(a) APPLICABILITY.—
(1) EXEMPTIONS FROM ADMINISTRATIVE PRO-
CEDURE.—Except as provided in this section, sec-
tions 551 and 553 through 559 of title 5, United
States Code, do not apply to the functions exercised
under this title.
(2) JUDICIAL
REVIEW.—(A) Subject to sub-
paragraphs (B) and (C) and except as otherwise
provided in this section, actions under this title shall
be subject to judicial review under chapter 7 of title
5, United States Code.
(B) Any discretionary determination of whether
a commodity or technology should or should not be
on the control index shall not be subject to judicial
review.
(C) An action to obtain judicial review under
this subsection may be brought in the appropriate
United States district court.
(b) PROCEDURES RELATING TO CIVIL PENALTIES
AND SANCTIONS.—
169
(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.
(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
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).
(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, or in any case in which
170
a criminal indictment 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 hearing, issue an order temporarily deny-
ing that person’s United States export privileges
(hereafter in this subsection referred to a ‘‘tem-
porary denial order’’). A temporary denial order may
be effective for no longer than 180 days, but may be
renewed by the 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
171
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.
(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,
172
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
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.
(e) APPEALS FROM LICENSING AND CLASSIFICATION
ACTIONS.—
(1) LICENSE DENIALS.—A determination of the
Secretary under section 109 to deny a license may
be appealed by the applicant to an administrative
law judge who shall have the authority to conduct
proceedings to determine only whether the item
sought to be exported is in fact on the control list.
Such proceedings shall be conducted within 90 days
after the appeal is filed. Any determination by an
173
administrative law judge under this subsection and
all materials filed before such judge in the proceed-
ings shall be reviewed by the Secretary, who shall ei-
ther affirm or vacate the determination in a written
decision within 30 days after receiving the deter-
mination.
(2) CLASSIFICATION
DECISIONS.—(A) Within
30 days after the issuance of a classification decision
under section 109(h)(1), or within 30 days after the
failure to issue such a classification decision in re-
sponse to a request for such a decision, any United
States person aggrieved by such decision or failure
may file an appeal thereof to an administrative law
judge, but only on issues regarding such classifica-
tion decision including, but not limited to, decisions
of whether an item is covered by any general or spe-
cific note. The administrative law judge may not re-
view determinations as to the reliability of an end
user or the nature of an end use or end user. The
administrative law judge shall, within 90 days after
such appeal is filed, issue his or her decision and
issue any order that is necessary or appropriate to
carry out such decision. Such order shall be binding
upon the Secretary unless and until vacated or modi-
fied under subparagraph (B). Such order may be
174
stayed by the administrative law judge or the Sec-
retary pending the filing and determination of an
appeal under subparagraph (B).
(B) Any United States person aggrieved by a
decision of the administrative law judge under sub-
paragraph (A) may appeal such decision to the Sec-
retary within 45 days after receiving notification of
such decision. The Secretary shall, in a written
order, affirm, modify, or vacate the decision of the
administrative law judge within 30 days after such
appeal is filed. The authority of the Secretary under
this paragraph may not be delegated to an officer or
employee of the Bureau of Export Administration.
(3) PUBLICATION
AND
INDEXING
OF
DECI-
SIONS.—Subject to the limitations of section 114(g),
final decisions of administrative law judges and the
Secretary under this subsection shall be published in
the Federal Register within 15 days after they are
rendered. The Secretary shall index decisions on ap-
peals of license denials.
(4) CONDUCT
OF
PROCEEDINGS.—Except as
provided in this subsection, proceedings under this
subsection shall be conducted in accordance with
sections 554 (notwithstanding subsection (a)(4) of