130
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 amounts realized from the for-
feiture of any property interest or proceeds under sub-
section (b), and any amount paid in satisfaction of any
civil penalty imposed under subsection (c) shall be covered
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 (or any regulation, license, or order
issued under this title or that Act),
131
(B) any regulation, license, or order issued
under the International Emergency Economic
Powers Act,
(C) section 793, 794, or 798 of title 18,
United States Code,
(D) section 371 or 1001 of title 18, United
States Code, if in connection with the export of
commodities or technology controlled under this
title, or defense articles or defense services con-
trolled under the Arms Export Control Act,
(E) section 4(a) of the Internal Security
Act of 1950 (50 U.S.C. 783(a)), or
(F) section 38 of the Arms Export Control
Act,
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
132
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
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), (f), or (g) limits—
(1) the availability of other administrative or
judicial remedies with respect to violations of this
133
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-
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
134
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.
SEC. 111. CONTROLLING PROLIFERATION ACTIVITY.
(a) ESTABLISHMENT OF PROLIFERATION LISTS.—
(1) ESTABLISHMENT OF CHEMICAL AND BIO-
LOGICAL
WEAPONS
CONTROL
LIST
UNDER
THIS
TITLE.—
(A) IN GENERAL.—The Secretary, in con-
sultation with the Secretary of State, the Sec-
retary of Defense, and the heads of other ap-
propriate departments and agencies, shall es-
tablish and maintain a list of commodities and
technology, which shall include those commod-
ities and technology controlled pursuant to mul-
tilateral export control regimes such as the Aus-
tralia Group—
(i) that would directly and substan-
tially assist a foreign government, group,
entity, or project in acquiring the capabil-
ity to develop, produce, stockpile, or deliver
chemical or biological weapons; and
(ii) the licensing of which would be ef-
fective in barring the acquisition or en-
hancement of such capability.
135
(B) REQUIREMENT
FOR
VALIDATED
LI-
CENSES.—Subject to the provisions of this title,
the Secretary shall require a validated license
for any export of commodities or technology on
the list established under subparagraph (A) to
any country of concern.
(C) COUNTRY
OF
CONCERN.—For pur-
poses of subparagraph (B), the term ‘‘country
of concern’’ means any country other than—
(i) a country with whose government
the United States has entered into a bilat-
eral or multilateral arrangement for the
control of commodities or technology on
the list established under subparagraph
(A); and
(ii) such other countries as the Sec-
retary of State, in consultation with the
Secretary and the Secretary of Defense,
shall designate consistent with the pur-
poses of this section.
(2) ESTABLISHMENT OF MISSILE TECHNOLOGY
CONTROL LIST UNDER THIS TITLE.—
(A) The Secretary, in consultation with the
Secretary of State, the Secretary of Defense,
136
and the heads of other appropriate departments
and agencies—
(i) shall establish and maintain a list
of all dual use commodities and technology
on the MTCR Annex; and
(ii) may include on that list any com-
modities or technology that would provide
a direct and significant impact on the de-
velopment of missile delivery systems.
(B) REQUIREMENT OF INDIVIDUAL VALI-
DATED LICENSES.—Subject to the provisions of
this title, the Secretary shall require an individ-
ual validated license for—
(i) any export of commodities or tech-
nology on the list established under sub-
paragraph (A) to any country; and
(ii) any export of commodities or tech-
nology that the exporter knows is destined
for a project or facility for the design, de-
velopment, or manufacture of a missile in
a country that is not an MTCR adherent.
(C) POLICY OF DENIAL OF LICENSES.—(i)
Licenses under subparagraph (B) should in
general be denied if the ultimate consignee of
the commodities or technology is a facility in a
137
country that is not an MTCR adherent and the
facility is designed to develop or build missiles.
(ii) Licenses under subparagraph (B) shall
be denied if the ultimate consignee of the com-
modities or technology is a facility in a country
the government of which has been determined
under section 106(i)(1) to have repeatedly pro-
vided support for acts of international terror-
ism.
(D) DEFINITION.—For purposes of this
paragraph, the term ‘‘MTCR adherent’’ means
a country that participates in the MTCR or
that, pursuant to an international understand-
ing to which the United States is a party, con-
trols MTCR equipment or technology in accord-
ance with the criteria and standards set forth
in the MTCR.
(b) ESTABLISHMENT OF LISTS UNDER ARMS EX-
PORT CONTROL ACT.—
(1) CHEMICAL
AND
BIOLOGICAL
WEAPONS
LIST.—Section 81 of the Arms Export Control Act
(22 U.S.C. 2798) is amended to read as follows:
138
‘‘SEC. 81. ESTABLISHMENT OF CHEMICAL AND BIOLOGICAL
WEAPONS CONTROL LIST.
‘‘(a) IN GENERAL.—The Secretary of State, in con-
sultation with the Secretary of Defense, and the heads of
other appropriate departments and agencies, shall estab-
lish and maintain, as part of the United States Munitions
List, a list of items, which shall include those items con-
trolled pursuant to multilateral export control regimes,
such as the Australia Group—
‘‘(1) that would directly and substantially assist
a foreign government, group, entity, or project in ac-
quiring the capability to develop, produce, stockpile,
or deliver chemical or biological weapons;
‘‘(2) the licensing of which would be effective in
barring the acquisition or enhancement of such ca-
pability; and
‘‘(3) the export of which is not subject to con-
trol under section 111(a)(1) of the Export Act of
1995.
‘‘(b) REQUIREMENT FOR VALIDATED LICENSES.—
The Secretary of State shall require a validated license
for any export of items on the list established under sub-
section (a).
‘‘(c) DEFINITIONS.—For purposes of this section, the
terms ‘multilateral export control regime’ and ‘Australia
139
Group’ have the meanings given those terms in section
116 of the Export Act of 1995.’’.
(2) MISSILE
TECHNOLOGY
CONTROL
LIST.—
Section 71 of the Arms Export Control Act (22
U.S.C. 2797) is amended to read as follows:
‘‘SEC. 71. LICENSING.
‘‘(a) ESTABLISHMENT
OF MISSILE TECHNOLOGY
CONTROL LIST.—The Secretary of State, in consultation
with the Secretary of Defense and the heads of other ap-
propriate departments and agencies, shall establish and
maintain a list of all items, which shall include those items
listed on the MTCR Annex, that would provide a direct
and significant impact on the development of missile deliv-
ery systems and the export of which is not subject to con-
trol under section 111(a)(2) of the Export Act of 1995.
‘‘(b) REQUIREMENT OF VALIDATED LICENSES.—The
Secretary shall require a validated license for—
‘‘(1) any export of items on the list established
under subsection (a) to any country; and
‘‘(2) any export of items that the exporter
knows is destined for a project or facility for the de-
sign, development, or manufacture of a missile in a
country that is not an MTCR adherent.
‘‘(c) POLICY OF DENIAL OF LICENSES.—
140
‘‘(1) EXPORTS TO OTHER THAN MTCR ADHER-
ENTS.—Licenses under subsection (b) shall be de-
nied if the ultimate consignee of the items is a facil-
ity in a country that is not an MTCR adherent and
the facility is designed to develop or build missiles.
‘‘(2) EXPORTS TO TERRORIST COUNTRIES.—Li-
censes under subsection (b) shall be denied if the ul-
timate consignee of the items is a facility in a coun-
try the government of which has been determined
under section 106(i)(1) of the Export Act of 1995
to have repeatedly provided support for acts of inter-
national terrorism.’’.
(c) SANCTIONS FOR ACTIVITIES SUPPORTING THE
PROLIFERATION OF CHEMICAL AND BIOLOGICAL WEAP-
ONS AND MISSILES.—
(1) VIOLATIONS
BY
UNITED
STATES
PER-
SONS.—(A) If the President determines that a
United States person, on or after the date of the
enactment of this Act, with requisite knowledge—
(i) exports or transfers—
(I) any item on the list established
under subsection (a)(1) or (a)(2), or
(II) any item on the list established
under section 71(a) or 81(a) of the Arms
Export Control Act,
141
in violation of United States law,
(ii) conspires to or attempts to engage in
such export or transfer, or
(iii) facilitates such export or transfer 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).
(B) The sanctions referred to in subparagraph
(A) are the following:
(i) All export licenses under this title to
the sanctioned entity for items controlled under
section 105, or for items controlled under sec-
tion 106 that meet the requirements of section
105(a)(1)(A) or (B), and all export licenses
under the Arms Export Control Act for items
on the United States Munitions List, shall be
denied.
(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.
(C) In the case of a determination made under
subparagraph (A), the President may pursue any