22 USC CHAPTER 39, SUBCHAPTER VII: CONTROL OF MISSILES AND MISSILE EQUIPMENT OR TECHNOLOGY

From Title 22—FOREIGN RELATIONS AND INTERCOURSECHAPTER 39—ARMS EXPORT CONTROL

SUBCHAPTER VII—CONTROL OF MISSILES AND MISSILE EQUIPMENT OR TECHNOLOGY

§2797. Licensing

(a) Establishment of list of controlled items

The Secretary of State, in consultation with the Secretary of Defense and the heads of other appropriate departments and agencies, shall establish and maintain, as part of the United States Munitions List, a list of all items on the MTCR Annex the export of which is not controlled under section 4605(l) ¹ of title 50.

(b) Referral of license applications

(1) A determination of the Secretary of State to approve a license for the export of an item on the list established under subsection (a) may be made only after the license application is referred to the Secretary of Defense.

(2) Within 10 days after a license is issued for the export of an item on the list established under subsection (a), the Secretary of State shall provide to the Secretary of Defense and the Secretary of Commerce the license application and accompanying documents issued to the applicant, to the extent that the relevant Secretary indicates the need to receive such application and documents.

(c) Information sharing

The Secretary of State shall establish a procedure for sharing information with appropriate officials of the intelligence community, as determined by the Director of Central Intelligence, and with other appropriate Government agencies, that will ensure effective monitoring of transfers of MTCR equipment or technology and other missile technology.

(d) Exports to space launch vehicle programs

Within 15 days after the issuance of a license (including any brokering license) for the export of items valued at less than $50,000,000 that are controlled under this chapter pursuant to United States obligations under the Missile Technology Control Regime and are goods or services that are intended to support the design, utilization, development, or production of a space launch vehicle system listed in Category I of the MTCR Annex, the Secretary shall transmit to the Congress a report describing the licensed export and rationale for approving such export, including the consistency of such export with United States missile nonproliferation policy. The requirement contained in the preceding sentence shall not apply to licenses for exports to countries that were members of the MTCR as of April 17, 1987.

(Pub. L. 90–629, ch. 7, §71, as added Pub. L. 101–510, div. A, title XVII, §1703, Nov. 5, 1990, 104 Stat. 1745; amended Pub. L. 103–236, title VII, §§714(a)(3)–(6), 735(c), Apr. 30, 1994, 108 Stat. 497, 506; Pub. L. 105–277, div. G, subdiv. A, title XII, §1225(a)(4)–(7), Oct. 21, 1998, 112 Stat. 2681–773; Pub. L. 106–280, title VII, §708(c), Oct. 6, 2000, 114 Stat. 863.)

Editorial Notes

References in Text

Section 4605(l) of title 50, referred to in subsec. (a), was repealed by Pub. L. 115–232, div. A, title XVII, §1766(a), Aug. 13, 2018, 132 Stat. 2232.

This chapter, referred to in subsec. (d), was in the original "this Act", meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables.

Amendments

2000—Subsec. (d). Pub. L. 106–280 substituted "Within 15 days after the issuance of a license (including any brokering license) for the export of items valued at less than $50,000,000 that are controlled under this chapter pursuant to United States obligations under the Missile Technology Control Regime and are goods or services that are intended to support the design, utilization, development, or production of a space launch vehicle system listed in Category I of the MTCR Annex," for "Within 15 days after the issuance of a license for the export of items valued at less than $14,000,000 that are controlled under this chapter pursuant to United States obligations under the Missile Technology Control Regime and intended to support the design, development, or production of a space launch vehicle system listed in Category I of the MTCR Annex,".

1998—Subsec. (a). Pub. L. 105–277, §1225(a)(4), struck out ", the Director of the Arms Control and Disarmament Agency," after "Secretary of Defense".

Subsec. (b)(1). Pub. L. 105–277, §1225(a)(5), struck out "and the Director of the United States Arms Control and Disarmament Agency" after "Secretary of Defense".

Subsec. (b)(2). Pub. L. 105–277, §1225(a)(6), substituted "and the Secretary of Commerce" for "the Secretary of Commerce, and the Director of the United States Arms Control and Disarmament Agency" and struck out "or the Director" after "the relevant Secretary".

Subsec. (c). Pub. L. 105–277, §1225(a)(7), struck out "with the Director of the United States Arms Control and Disarmament Agency," after "Director of Central Intelligence,".

1994—Subsec. (a). Pub. L. 103–236, §714(a)(3), inserted ", the Director of the Arms Control and Disarmament Agency," after "the Secretary of Defense".

Subsec. (b)(1). Pub. L. 103–236, §714(a)(4), inserted "and the Director of the United States Arms Control and Disarmament Agency" after "Secretary of Defense".

Subsec. (b)(2). Pub. L. 103–236, §714(a)(5), substituted ", the Secretary of Commerce, and the Director of the United States Arms Control and Disarmament Agency" for "and the Secretary of Commerce" and inserted "or the Director" after "relevant Secretary".

Subsec. (c). Pub. L. 103–236, §714(a)(6), inserted "with the Director of the United States Arms Control and Disarmament Agency," after "Director of Central Intelligence,".

Subsec. (d). Pub. L. 103–236, §735(c), added subsec. (d).

Statutory Notes and Related Subsidiaries

Change of Name

Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director's capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director's capacity as the head of the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108–458, set out as a note under section 3001 of Title 50, War and National Defense.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–277 effective Apr. 1, 1999, see section 1201 of Pub. L. 105–277, set out as an Effective Date note under section 6511 of this title.

Policy and Sense of Congress on Nonproliferation of Ballistic Missiles

Pub. L. 108–375, div. A, title XII, §1212, Oct. 28, 2004, 118 Stat. 2087, provided that:

"(a) Findings.—Congress makes the following findings:

"(1) Certain countries are seeking to acquire ballistic missiles and related technologies that could be used to attack the United States or place at risk United States interests, deployed members of the Armed Forces, and allies of the United States and other friendly foreign countries.

"(2) Certain countries continue to actively transfer or sell ballistic missile technologies in contravention of standards of behavior established by the United States and allies of the United States and other friendly foreign countries.

"(3) The spread of ballistic missiles and related technologies worldwide has been slowed by a combination of national and international export controls, forward-looking diplomacy, and multilateral interdiction activities to restrict the development and transfer of such missiles and technologies.

"(b) Policy.—It is the policy of the United States to develop, support, and strengthen international accords and other cooperative efforts to curtail the proliferation of ballistic missiles and related technologies which could threaten the territory of the United States, allies of the United States and other friendly foreign countries, and deployed members of the Armed Forces of the United States with weapons of mass destruction.

"(c) Sense of Congress.—It is the sense of Congress that—

"(1) the United States should vigorously pursue foreign policy initiatives aimed at eliminating, reducing, or retarding the proliferation of ballistic missiles and related technologies; and

"(2) the United States and the international community should continue to support and strengthen established international accords and other cooperative efforts, including United Nations Security Council Resolution 1540 (April 28, 2004) and the Missile Technology Control Regime, that are designed to eliminate, reduce, or retard the proliferation of ballistic missiles and related technologies."

MTCR Report Transmittals

Pub. L. 106–280, title VII, §704, Oct. 6, 2000, 114 Stat. 861, provided that: "For purposes of section 71(d) of the Arms Export Control Act (22 U.S.C. 2797(d)), the requirement that reports under that section shall be transmitted to the Congress shall be considered to be a requirement that such reports shall be transmitted to the Committee on International Relations [now Committee on Foreign Affairs] of the House of Representatives and the Committee on Foreign Relations and the Committee on Banking, Housing and Urban Affairs of the Senate."

Report on Missile Proliferation

Pub. L. 101–510, div. A, title XVII, §1704, Nov. 5, 1990, 104 Stat. 1749, directed President to submit to Congress reports on international transfers of aircraft which the Secretary had reason to believe may be intended to be used for delivery of nuclear, biological, or chemical weapons and international transfers of MTCR equipment or technology to any country seeking to acquire such equipment or technology, and which provided for contents of reports, countries excluded from such reports, classification of information, and definitions, prior to repeal by Pub. L. 102–190, div. A, title X, §1097(g), Dec. 5, 1991, 105 Stat. 1491.

Executive Documents

Delegation of Functions

Memorandum of President of the United States, June 25, 1991, 56 F.R. 31041, which provided for delegation of certain functions of the President, was superseded by Ex. Ord. No. 12851, §7, June 11, 1993, 58 F.R. 33181, set out below.

Ex. Ord. No. 12851. Administration of Proliferation Sanctions, Middle East Arms Control, and Related Congressional Reporting Responsibilities

Ex. Ord. No. 12851, June 11, 1993, 58 F.R. 33181, as amended by Ex. Ord. No. 13883, §3, Aug. 1, 2019, 84 F.R. 38113, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code; sections 1701–1703 of the National Defense Authorization Act for Fiscal Year 1991, Public Law 101–510 (50 U.S.C. App. 2402 note, 2405, 2410b [now 50 U.S.C. 4602 note, former 4605, former 4612]; 22 U.S.C. 2797–2797c); sections 303, 324 [105 Stat. 708, 711], and 401–405 [22 U.S.C. 2778 note] of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993, Public Law 102–138; sections 305–308 of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991, Public Law 102–182 (50 U.S.C. App. 2410c [now 50 U.S.C. 4613]; 22 U.S.C. 2798, 5604–5606); sections 241 [105 Stat. 1326] and 1097 [former 22 U.S.C. 2751 note] of the National Defense Authorization Act for Fiscal Years 1992 and 1993, Public Law 102–190; and section 1364 of the National Defense Authorization Act for Fiscal Year 1993, Public Law 102–484 [106 Stat. 2561], I hereby order as follows:

Section 1. Chemical and Biological Weapons Proliferation and Use Sanctions. (a) Chemical and Biological Weapons Proliferation. The authority and duties vested in me by section 81 of the Arms Export Control Act, as amended ("AECA") (22 U.S.C. 2798), and section 11C of the Export Administration Act of 1979, as amended ("EAA") (50 U.S.C. App. 2410c) [now 50 U.S.C. 4613], are delegated to the Secretary of State, except that:

(1) The authority and duties vested in me to deny certain United States Government contracts, as provided in section 81(c)(1)(A) of the AECA and section 11C(c)(1)(A) of the EAA, pursuant to a determination made by the Secretary of State under section 81(a)(1) of the AECA or section 11C(a)(1) of the EAA, as well as the authority and duties vested in me to make the determinations provided for in section 81(c)(2) of the AECA and section 11C(c)(2) of the EAA are delegated to the Secretary of Defense. The Secretary of Defense shall notify the Secretary of the Treasury of determinations made pursuant to section 81(c)(2) of the AECA and section 11(c)(2) [11C(c)(2)] of the EAA.

(2) The authority and duties vested in me to prohibit certain imports as provided in section 81(c)(1)(B) of the AECA and section 11C(c)(1)(B) of the EAA, pursuant to a determination made by the Secretary of State under section 81(a)(1) of the AECA or section 11C(a)(1) of the EAA, and the obligation to implement the exceptions provided in section 81(c)(2) of the AECA and section 11C(c)(2) of the EAA, insofar as the exceptions affect imports of goods into the United States, are delegated to the Secretary of the Treasury.

(b) Chemical and Biological Weapons Use. The authority and duties vested in me by sections 306–308 of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (22 U.S.C. 5604–5606) are delegated to the Secretary of State, except that:

(1) The authority and duties vested in me to restrict certain imports as provided in section 307(b)(2)(D) [22 U.S.C. 5605(b)(2)(D)], pursuant to a determination made by the Secretary of State under section 307(b)(1), are delegated to the Secretary of the Treasury.

(2) The Secretary of State shall issue, transmit to the Congress, and notify the Secretary of the Treasury of, as appropriate, waivers based upon findings made pursuant to section 307(d)(1)(A)(ii).

(3) The authority and duties vested in me to prohibit certain exports as provided in section 307(a)(5) and section 307(b)(2)(C), pursuant to a determination made by the Secretary of State under section 306(a)(1) and section 307(b)(1), are delegated to the Secretary of Commerce.

(4) The authorities and duties vested in me to oppose certain multilateral development bank assistance and to prohibit certain bank loans as provided in section 307(b)(2)(A)–(B), pursuant to a determination made by the Secretary of State under section 307(b)(1), are delegated to the Secretary of the Treasury.

(c) Coordination Among Agencies. The Secretaries designated in this section shall exercise all functions delegated to them by this section in consultation with the Secretary of State, the Secretary of Defense, the Secretary of the Treasury, the Secretary of Commerce, the Director of the Arms Control and Disarmament Agency, and other departments and agencies as appropriate, utilizing the appropriate interagency groups prior to any determination to exercise the prohibition authority delegated hereby.

Sec. 2. Missile Proliferation Sanctions. (a) Arms Export Control Act. The authority and duties vested in me by sections 72–73 of the AECA (22 U.S.C. 2797a–2797b) are delegated to the Secretary of State, except that:

(1) The authority and duties vested in me by section 72(a)(1) to make determinations with respect to violations by United States persons of the EAA [50 U.S.C. 4601 et seq.] are delegated to the Secretary of Commerce.

(2) The authority and duties vested in me to deny certain United States Government contracts as provided in sections 73(a)(2)(A)(i) and 73(a)(2)(B)(i), pursuant to a determination made by the Secretary of State under section 73(a)(1), as well as the authority and duties vested in me to make the findings provided in sections 72(c), 73(f), and 73(g)(1), are delegated to the Secretary of Defense. The Secretary of State shall issue, transmit to the Congress, and notify the Secretary of the Treasury of, as appropriate, any waivers based upon findings made pursuant to sections 72(c) and 73(f).

(3) The authority and duties vested in me to prohibit certain imports as provided in section 73(a)(2)(C), pursuant to a determination made by the Secretary of State under that section, and the obligation to implement the exceptions provided in section 73(g), are delegated to the Secretary of the Treasury.

(b) Export Administration Act. The authority and duties vested in me by section 11B of the EAA (50 U.S.C. App. 2410b) [now 50 U.S.C. 4612] are delegated to the Secretary of Commerce, except that:

(1) The authority and duties vested in me by sections 11B(a)(1)(A) (insofar as such section authorizes determinations with respect to violations by United States persons of the AECA [22 U.S.C. 2751 et seq.]), 11B(b)(1) (insofar as such section authorizes determinations regarding activities by foreign persons), and 11B(b)(5) are delegated to the Secretary of State.

(2) The authority and duties vested in me to make the findings provided in sections 11B(a)(3), 11B(b)(6), and 11B(b)(7)(A) are delegated to the Secretary of Defense. The Secretary of Commerce shall issue, transmit to the Congress, and notify the Secretary of the Treasury of, as appropriate, waivers based upon findings made pursuant to section 11B(a)(3). The Secretary of State shall issue, transmit to the Congress, and notify the Secretary of the Treasury of, as appropriate, waivers based upon findings made pursuant to section 11B(b)(6).

(3) The authority and duties vested in me to prohibit certain imports as provided in section 11B(b)(1), pursuant to a determination by the Secretary of State under that section, and the obligation to implement the exceptions provided in section 11B(b)(7), are delegated to the Secretary of the Treasury.

(c) Reporting Requirements. The authority and duties vested in me to make certain reports to the Congress as provided in section 1097 of the National Defense Authorization Act for Fiscal Years 1992 and 1993 [former 22 U.S.C. 2751 note] and section 1364 of the National Defense Authorization Act for Fiscal Year 1993 [Pub. L. 102–484, 106 Stat. 2561] are delegated to the Secretary of State.

(d) Coordination Among Agencies. The Secretaries designated in this section shall exercise all functions delegated to them by this section in consultation with the Secretary of State, the Secretary of Defense, the Secretary of the Treasury, the Secretary of Commerce, the Director of the Arms Control and Disarmament Agency, and other departments and agencies as appropriate, utilizing the appropriate interagency groups prior to any determination to exercise prohibition authority delegated hereby.

Sec. 3. Arms Control in the Middle East. The certification and reporting functions vested in me by sections 403 and 404 of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 [22 U.S.C. 2778 note], are delegated to the Secretary of State. The Secretary of State shall exercise these functions in consultation with the Secretary of Defense and other agencies as appropriate.

Sec. 4. China and Weapons Proliferation. The reporting functions regarding China and weapons proliferation vested in me by sections 303(a)(2) and 324 of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 [Pub. L. 102–138, 105 Stat. 709, 711], are delegated to the Secretary of State. The Secretary of State shall exercise these functions in consultation with the Secretary of Defense and other agencies as appropriate.

Sec. 5. Arrow Tactical Anti-Missile Program. The authority and duties vested in me to make certain certifications as provided by section 241(b)(3)(C) of the National Defense Authorization Act for Fiscal Years 1992 and 1993 [Pub. L. 102–190, 105 Stat. 1327] are delegated to the Secretary of State.

Sec. 6. Delegations. The functions delegated herein may be redelegated as appropriate. Regulations necessary to carry out the functions delegated herein may be issued as appropriate.

Sec. 7. Priority. This order supercedes the Memorandum of the President, "Delegation of Authority Regarding Missile Technology Proliferation," June 25, 1991. To the extent that this order is inconsistent with any provisions of any prior Executive order or Presidential memorandum, this order shall control.

[For abolition, transfer of functions, and treatment of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of this title.]

¹ See References in Text note below.

§2797a. Denial of transfer of missile equipment or technology by United States persons

(a) Sanctions

(1) If the President determines that a United States person knowingly—

(A) exports, transfers, or otherwise engages in the trade of any item on the MTCR Annex, in violation of the provisions of section 2778 of this title, section 4604 or 4605 ¹ of title 50 or any regulations or orders issued under any such provisions,

(B) conspires to or attempts to engage in such export, transfer, or trade, or

then the President shall impose the applicable sanctions described in paragraph (2).

(2) The sanctions which apply to a United States person under paragraph (1) are the following:

(A) If the item on the MTCR Annex involved in the export, transfer, or trade is missile equipment or technology within category II of the MTCR Annex, then the President shall deny to such United States person for a period of 2 years—

(i) United States Government contracts relating to missile equipment or technology; and

(ii) licenses for the transfer of missile equipment or technology controlled under this chapter.

(B) If the item on the MTCR Annex involved in the export, transfer, or trade is missile equipment or technology within category I of the MTCR, then the President shall deny to such United States person for a period of not less than 2 years—

(i) all United States Government contracts, and

(ii) all export licenses and agreements for items on the United States Munitions List.

(b) Discretionary sanctions

In the case of any determination made pursuant to subsection (a), the President may pursue any penalty provided in section 2778(c) of this title.

(c) Presumption

In determining whether to apply sanctions under subsection (a) to a United States person involved in the export, transfer, or trade of an item on the MTCR Annex, it should be a rebuttable presumption that such item is designed for use in a missile listed in the MTCR Annex if the President determines that the final destination of the item is a country the government of which the Secretary of State has determined, for purposes of ² 4605(j)(1)(A) ¹ of title 50, has repeatedly provided support for acts of international terrorism.

(d) Waiver

The President may waive the imposition of sanctions under subsection (a) with respect to a product or service if the President certifies to the Congress that—

(1) the product or service is essential to the national security of the United States; and

(2) such person 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 technological developments.

(Pub. L. 90–629, ch. 7, §72, as added Pub. L. 101–510, div. A, title XVII, §1703, Nov. 5, 1990, 104 Stat. 1745; amended Pub. L. 103–236, title VII, §734(a), Apr. 30, 1994, 108 Stat. 505.)

Editorial Notes

References in Text

Sections 4604 and 4605 of title 50, referred to in subsecs. (a)(1)(A) and (c), were repealed by Pub. L. 115–232, div. A, title XVII, §1766(a), Aug. 13, 2018, 132 Stat. 2232.

This chapter, referred to in subsec. (a)(2)(A)(ii), was in the original "this Act", meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables.

Amendments

1994—Subsecs. (c), (d). Pub. L. 103–236 added subsec. (c) and redesignated former subsec. (c) as (d).

Executive Documents

Delegation of Functions

For delegation of certain functions of the President under this section, see Ex. Ord. No. 12851, §2(a), June 11, 1993, 58 F.R. 33181, set out as a note under section 2797 of this title.

¹ See References in Text note below.

² So in original. Probably should be followed by "section".

§2797b. Transfers of missile equipment or technology by foreign persons

(a) Sanctions

(1) Subject to subsections (c) through (g),¹ if the President determines that a foreign person, after November 5, 1990, knowingly—

(A) exports, transfers, or otherwise engages in the trade of any MTCR equipment or technology that contributes to the acquisition, design, development, or production of missiles in a country that is not an MTCR adherent and would be, if it were United States-origin equipment or technology, subject to the jurisdiction of the United States under this chapter,

(B) conspires to or attempts to engage in such export, transfer, or trade, or

or if the President has made a determination with respect to a foreign person under section 4612(b)(1) of title 50, then the President shall impose on that foreign person the applicable sanctions under paragraph (2).

(2) The sanctions which apply to a foreign person under paragraph (1) are the following:

(A) 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—

(i) United States Government contracts relating to missile equipment or technology; and

(ii) licenses for the transfer to such foreign person of missile equipment or technology controlled under this chapter.

(B) 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—

(i) all United States Government contracts with such foreign person; and

(ii) licenses for the transfer to such foreign person of all items on the United States Munitions List.

(C) If, in addition to actions taken under subparagraphs (A) and (B), the President 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 MTCR adherent, 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 foreign person.

(b) Inapplicability with respect to MTCR adherents

(1) In general

Except as provided in paragraph (2), subsection (a) does not apply with respect to—

(A) any export, transfer, or trading activity that is authorized by the laws of an MTCR adherent, if such authorization is not obtained by misrepresentation or fraud; or

(B) any export, transfer, or trade of an item to an end user in a country that is an MTCR adherent.

(2) Limitation

Notwithstanding paragraph (1), subsection (a) shall apply to an entity subordinate to a government that engages in exports or transfers described in section 2295a(b)(3)(A) of this title.

(c) Effect of enforcement actions by MTCR adherents

Sanctions set forth in subsection (a) may not be imposed under this section on a person with respect to acts described in such subsection or, if such sanctions are in effect against a person on account of such acts, such sanctions shall be terminated, if an MTCR adherent is taking judicial or other enforcement action against that person with respect to such acts, or that person has been found by the government of an MTCR adherent to be innocent of wrongdoing with respect to such acts, and if the President certifies to the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives that—

(1) for any judicial or other enforcement action taken by the MTCR adherent, such action has—

(A) been comprehensive; and

(B) been performed to the satisfaction of the United States; and

(2) with respect to any finding of innocence of wrongdoing, the United States is satisfied with the basis for such finding.

(d) Advisory opinions

The Secretary of State, in consultation with the Secretary of Defense and the Secretary of Commerce, may, upon the request of any person, issue an advisory opinion to that person as to whether a proposed activity by that person would subject that person to sanctions under this section. Any person who relies in good faith on such an advisory opinion which states that the proposed activity would not subject a person to such sanctions, and any person who thereafter engages in such activity, may not be made subject to such sanctions on account of such activity.

(e) Waiver and report to Congress

(1) In any case other than one in which an advisory opinion has been issued under subsection (d) stating that a proposed activity would not subject a person to sanctions under this section, the President may waive the application of subsection (a) to a foreign person if the President determines that such waiver is essential to the national security of the United States.

(2) In the event that the President decides to apply the waiver described in paragraph (1), the President shall so notify the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives not less than 45 working days before issuing the waiver. Such notification shall include a report fully articulating the rationale and circumstances which led the President to apply the waiver.

(f) Presumption

In determining whether to apply sanctions under subsection (a) to a foreign person involved in the export, transfer, or trade of an item on the MTCR Annex, it should be a rebuttable presumption that such item is designed for use in a missile listed in the MTCR Annex if the President determines that the final destination of the item is a country the government of which the Secretary of State has determined, for purposes of 4605(j)(1)(A) ² of title 50, has repeatedly provided support for acts of international terrorism.

(g) Additional waiver

The President may waive the imposition of sanctions under paragraph (1) on a person with respect to a product or service if the President certifies to the Congress that—

(1) the product or service is essential to the national security of the United States; and

(h) Exceptions

The President shall not apply the sanction under this section prohibiting the importation of the products of a foreign person—

(1) in the case of procurement of defense articles or defense services—

(A) 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;

(B) if the President determines that the person to which the sanctions would be applied is a sole source supplier of the defense articles and services, that the defense articles or services are essential to the national security of the United States, and that alternative sources are not readily or reasonably available; or

(C) if the President determines that such articles or services are essential to the national security of the United States under defense coproduction agreements or NATO Programs of Cooperation;

(2) to products or services provided under contracts entered into before the date on which the President publishes his intention to impose the sanctions; or

(3) to—

(A) spare parts,

(B) component parts, but not finished products, essential to United States products or production,

(C) routine services and maintenance of products, to the extent that alternative sources are not readily or reasonably available, or

(D) information and technology essential to United States products or production.

(Pub. L. 90–629, ch. 7, §73, as added Pub. L. 101–510, div. A, title XVII, §1703, Nov. 5, 1990, 104 Stat. 1746; amended Pub. L. 102–138, title III, §323(a), Oct. 28, 1991, 105 Stat. 711; Pub. L. 103–236, title VII, §§714(a)(7), 734(b), Apr. 30, 1994, 108 Stat. 497, 505; Pub. L. 104–106, div. A, title XIV, §1408(d), Feb. 10, 1996, 110 Stat. 494; Pub. L. 105–277, div. G, subdiv. A, title XII, §1225(a)(8), Oct. 21, 1998, 112 Stat. 2681–773; Pub. L. 106–113, div. B, §1000(a)(7) [div. B, title XI, §1136(b), (c)], Nov. 29, 1999, 113 Stat. 1536, 1501A-495; Pub. L. 113–276, title II, §208(a)(5), Dec. 18, 2014, 128 Stat. 2993.)

Editorial Notes

References in Text

Subsections (f) and (g), referred to in subsec. (a)(1), were redesignated subsecs. (g) and (h), respectively, by Pub. L. 103–236, title VII, §734(b)(1), Apr. 30, 1994, 108 Stat. 505.

This chapter, referred to in subsec. (a)(1)(A), (2)(A)(ii), was in the original "this Act", meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables.

Amendments

2014—Subsec. (e)(2). Pub. L. 113–276 substituted "the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives" for "the Committee on National Security and the Committee on International Relations of the House of Representatives".

1999—Subsec. (b). Pub. L. 106–113, §1000(a)(7) [title XI, §1136(b)], designated existing provisions as par. (1), inserted par. heading, in introductory provisions, substituted "Except as provided in paragraph (2), subsection (a)" for "Subsection (a)", redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, and added par. (2).

Subsec. (c). Pub. L. 106–113, §1000(a)(7) [title XI, §1136(c)], inserted before period at end ", and if the President certifies to the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives that—

"(1) for any judicial or other enforcement action taken by the MTCR adherent, such action has—

"(A) been comprehensive; and

"(B) been performed to the satisfaction of the United States; and

"(2) with respect to any finding of innocence of wrongdoing, the United States is satisfied with the basis for such finding".

1998—Subsec. (d). Pub. L. 105–277 substituted "and the Secretary of Commerce" for ", the Secretary of Commerce, and the Director of the United States Arms Control and Disarmament Agency".

1996—Subsec. (e)(2). Pub. L. 104–106 substituted "the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on National Security and the Committee on International Relations of the House of Representatives" for "the Congress" and "45 working days" for "20 working days".

1994—Subsec. (d). Pub. L. 103–236, §714(a)(7), substituted ", the Secretary of Commerce, and the Director of the United States Arms Control and Disarmament Agency," for "and the Secretary of Commerce,".

Subsecs. (f) to (h). Pub. L. 103–236, §734(b), added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.

1991—Subsec. (a)(1)(A). Pub. L. 102–138 inserted "acquisition," before "design,".

Statutory Notes and Related Subsidiaries

Change of Name

Committee on International Relations of House of Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–277 effective Apr. 1, 1999, see section 1201 of Pub. L. 105–277, set out as an Effective Date note under section 6511 of this title.

Space Cooperation With Russian Persons

Pub. L. 106–280, title VII, §708, Oct. 6, 2000, 114 Stat. 862, as amended by Pub. L. 109–112, §4(e)(2), Nov. 22, 2005, 119 Stat. 2370, provided that:

"(a) Annual Certification.—

"(1) Requirement.—The President shall submit each year to the appropriate committees of Congress [Committee on Foreign Relations of the Senate and Committee on Foreign Affairs of the House of Representatives], with respect to each Russian person described in paragraph (2), a certification that the reports required to be submitted to Congress during the preceding calendar year under section 2 of the Iran and Syria Nonproliferation Act (Public Law 106–178) [now Iran, North Korea, and Syria Nonproliferation Act] [50 U.S.C. 1701 note] do not identify that person on account of a transfer to Iran of goods, services, or technology described in section 2(a)(1)(B) of such Act.

"(2) Applicability.—The certification requirement under paragraph (1) applies with respect to each Russian person that, as of the date of the certification, is a party to an agreement relating to commercial cooperation on MTCR equipment or technology with a United States person pursuant to an arms export license that was issued at any time since January 1, 2000.

"(3) Exemption.—No activity or transfer which specifically has been the subject of a Presidential determination pursuant to section 5(a)(1), (2), or (3) of the Iran and Syria Nonproliferation Act (Public Law 106–178) [now Iran, North Korea, and Syria Nonproliferation Act] [50 U.S.C. 1701 note] shall cause a Russian person to be considered as having been identified in the reports submitted during the preceding calendar year under section 2 of that Act for the purposes of the certification required under paragraph (1).

"(4) Commencement and termination of requirement.—

"(A) Times for submission.—The President shall submit—

"(i) the first certification under paragraph (1) not later than 60 days after the date of the enactment of this Act [Oct. 6, 2000]; and

"(ii) each annual certification thereafter on the anniversary of the first submission.

"(B) Termination of requirement.—No certification is required under paragraph (1) after termination of cooperation under the specific license, or 5 years after the date on which the first certification is submitted, whichever is the earlier date.

"(b) Termination of Existing Licenses.—If, at any time after the issuance of a license under section 36(c) of the Arms Export Control Act [22 U.S.C. 2776(c)] relating to the use, development, or co-production of commercial rocket engine technology with a foreign person, the President determines that the foreign person has engaged in any action described in section 73(a)(1) of the Arms Export Control Act (22 U.S.C. 2797b(a)(1)) since the date the license was issued, the President may terminate the license.

"(c) Report on Export Licensing of MTCR Items Under $50,000,000.—[Amended section 2797 of this title.]

"(d) Definitions.—In this section:

"(1) Foreign person.—The term 'foreign person' has the meaning given the term in section 74(7) of the Arms Export Control Act (22 U.S.C. 2797c(7)).

"(2) MTCR equipment or technology.—The term 'MTCR equipment or technology' has the meaning given the term in section 74(5) of the Arms Export Control Act (22 U.S.C. 2797c(5)).

"(3) Person.—The term 'person' has the meaning given the term in section 74(8) of the Arms Export Control Act (22 U.S.C. 2797c(8)).

"(4) United states person.—The term 'United States person' has the meaning given the term in section 74(6) of the Arms Export Control Act (22 U.S.C. 2797c(6))."

Executive Documents

Delegation of Functions

For delegation of certain functions of the President under this section, see Ex. Ord. No. 12851, §2(a), June 11, 1993, 58 F.R. 33181, set out as a note under section 2797 of this title.

¹ See References in Text note below.

² So in original. Probably should be preceded by "section".

§2797b–1. Notification of admittance of MTCR adherents

(a) Policy report

Following any action by the United States that results in a country becoming a MTCR adherent, the President shall transmit promptly to the Congress a report which describes the rationale for such action, together with an assessment of that country's nonproliferation policies, practices, and commitments. Such report shall also include the text of any agreements or understandings between the United States and such country regarding the terms and conditions of the country's adherence to the MTCR.

(b) Intelligence assessment report

At such times that a report is transmitted pursuant to subsection (a), the Director of Central Intelligence shall promptly prepare and submit to the Congress a separate report containing any credible information indicating that the country described in subsection (a) has engaged in any activity identified under subparagraph (A), (B), or (C) of section 2797b(a)(1) of this title within the previous two years.

(Pub. L. 90–629, ch. 7, §73A, as added Pub. L. 103–236, title VII, §735(d), Apr. 30, 1994, 108 Stat. 506; amended Pub. L. 106–113, div. B, §1000(a)(7) [div. B, title XI, §1136(d)], Nov. 29, 1999, 113 Stat. 1536, 1501A-496.)

Editorial Notes

Amendments

1999—Pub. L. 106–113 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

Statutory Notes and Related Subsidiaries

Change of Name

Executive Documents

Delegation of Functions

Functions of President under this section delegated to Secretary of State by Memorandum of President of the United States, July 26, 1994, 59 F.R. 40205, set out as a note under section 2370a of this title.

§2797b–2. Authority relating to MTCR adherents

Notwithstanding section 2797b(b) of this title, the President may take the actions under section 2797b(a)(2) of this title under the circumstances described in section 2797c(b)(2) of this title.

(Pub. L. 90–629, ch. 7, §73B, as added Pub. L. 106–113, div. B, §1000(a)(7) [div. B, title XI, §1137], Nov. 29, 1999, 113 Stat. 1536, 1501A-496).

§2797c. Definitions

(a) In general

For purposes of this subchapter—

(1) the term "missile" means a category I system as defined in the MTCR Annex, and any other unmanned delivery system of similar capability, as well as the specially designed production facilities for these systems;

(2) the term "Missile Technology Control Regime" or "MTCR" means the policy statement, between the United States, the United Kingdom, the Federal Republic of Germany, France, Italy, Canada, and Japan, announced on April 16, 1987, to restrict sensitive missile-relevant transfers based on the MTCR Annex, and any amendments thereto;

(3) the term "MTCR adherent" means a country that participates in the MTCR or that, pursuant to an international understanding to which the United States is a party, controls MTCR equipment or technology in accordance with the criteria and standards set forth in the MTCR;

(4) the term "MTCR Annex" means the Guidelines and Equipment and Technology Annex of the MTCR, and any amendments thereto;

(5) the terms "missile equipment or technology" and "MTCR equipment or technology" mean those items listed in category I or category II of the MTCR Annex;

(6) the term "United States person" has the meaning given that term in section 4618(2) ¹ of title 50;

(7) the term "foreign person" means any person other than a United States person;

(8)(A) the term "person" means a natural person as well as a corporation, business association, 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

(B) in the case of countries with non-market economies (excluding former members of the Warsaw Pact), the term "person" means—

(i) all activities of that government relating to the development or production of any missile equipment or technology; and

(ii) all activities of that government affecting the development or production of electronics, space systems or equipment, and military aircraft; and

(9) the term "otherwise engaged in the trade of" means, with respect to a particular export or transfer, to be a freight forwarder or designated exporting agent, or a consignee or end user of the item to be exported or transferred.

(b) International understanding defined

For purposes of subsection (a)(3), as it relates to any international understanding concluded with the United States after January 1, 2000, the term "international understanding" means—

(1) any specific agreement by a country not to export, transfer, or otherwise engage in the trade of any MTCR equipment or technology that contributes to the acquisition, design, development, or production of missiles in a country that is not an MTCR adherent and would be, if it were United States-origin equipment or technology, subject to the jurisdiction of the United States under this chapter; or

(2) any specific understanding by a country that, notwithstanding section 2797b(b) of this title, the United States retains the right to take the actions under section 2797b(a)(2) of this title in the case of any export or transfer of any MTCR equipment or technology that contributes to the acquisition, design, development, or production of missiles in a country that is not an MTCR adherent and would be, if it were United States-origin equipment or technology, subject to the jurisdiction of the United States under this chapter.

(Pub. L. 90–629, ch. 7, §74, as added Pub. L. 101–510, div. A, title XVII, §1703, Nov. 5, 1990, 104 Stat. 1748; amended Pub. L. 102–138, title III, §323(b), (c), Oct. 28, 1991, 105 Stat. 711; Pub. L. 106–113, div. B, §1000(a)(7) [div. B, title XI, §1136(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A-495.)

Editorial Notes

References in Text

Section 4618(2) of title 50, referred to in subsec. (a)(6), was repealed by Pub. L. 115–232, div. A, title XVII, §1766(a), Aug. 13, 2018, 132 Stat. 2232.

This chapter, referred to in subsec. (b), was in the original "this Act", meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables.

Amendments

1999—Pub. L. 106–113 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

1991—Par. (8)(B). Pub. L. 102–138, §323(b), substituted "countries with non-market economies (excluding former members of the Warsaw Pact)" for "countries where it may be impossible to identify a specific governmental entity referred to in subparagraph (A)".

Par. (8)(B)(ii). Pub. L. 102–138, §323(c), substituted "electronics, space systems or equipment, and military aircraft" for "aircraft, electronics, and space systems or equipment".

¹ See References in Text note below.