§ 2797b. — Transfers of missile equipment or technology by foreign persons.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 22USC2797b]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 39--ARMS EXPORT CONTROL
SUBCHAPTER VII--CONTROL OF MISSILES AND MISSILE EQUIPMENT OR TECHNOLOGY
Sec. 2797b. Transfers of missile equipment or technology by
foreign persons
(a) Sanctions
(1) Subject to subsections (c) through (g) \1\ of this section, if
the President determines that a foreign person, after November 5, 1990,
knowingly--
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\1\ See References in Text note below.
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(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
(C) facilitates such export, transfer, or trade by any other
person,
or if the President has made a determination with respect to a foreign
person under section 2410b(b)(1) of title 50, Appendix, 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) of this
section 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) of this section
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) of this section 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) of this section stating that a proposed
activity would not subject a person to sanctions under this section, the
President may waive the application of subsection (a) of this section 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 National Security and the Committee on
International Relations 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) of
this section 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 2405(j)(1)(A) \2\ of title 50, Appendix, has
repeatedly provided support for acts of international terrorism.
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\2\ So in original. Probably should be preceded by ``section''.
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(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
(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.
(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, Sec. 73, as added Pub. L. 101-510, div. A, title
XVII, Sec. 1703, Nov. 5, 1990, 104 Stat. 1746; amended Pub. L. 102-138,
title III, Sec. 323(a), Oct. 28, 1991, 105 Stat. 711; Pub. L. 103-236,
title VII, Secs. 714(a)(7), 734(b), Apr. 30, 1994, 108 Stat. 497, 505;
Pub. L. 104-106, div. A, title XIV, Sec. 1408(d), Feb. 10, 1996, 110
Stat. 494; Pub. L. 105-277, div. G, subdiv. A, title XII,
Sec. 1225(a)(8), Oct. 21, 1998, 112 Stat. 2681-773; Pub. L. 106-113,
div. B, Sec. 1000(a)(7) [div. B, title XI, Sec. 1136(b), (c)], Nov. 29,
1999, 113 Stat. 1536, 1501A-495.)
References in Text
Subsections (f) and (g) of this section, referred to in subsec.
(a)(1), were redesignated subsecs. (g) and (h), respectively, by Pub. L.
103-236, title VII, Sec. 734(b)(1), Apr. 30, 1994, 108 Stat. 505.
Amendments
1999--Subsec. (b). Pub. L. 106-113, Sec. 1000(a)(7) [title XI,
Sec. 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, Sec. 1000(a)(7) [title XI,
Sec. 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, Sec. 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, Sec. 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,''.
Change of Name
Committee on National Security of House of Representatives changed
to Committee on Armed Services of House of Representatives by House
Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999.
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.
Delegation of Functions
For delegation of certain functions of the President under this
section, see Ex. Ord. No. 12851, Sec. 2(a), June 11, 1993, 58 F.R.
33181, set out as a note under section 2797 of this title.
Space Cooperation With Russian Persons
Pub. L. 106-280, title VII, Sec. 708, Oct. 6, 2000, 114 Stat. 862,
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 International Relations 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 Nonproliferation Act of 2000 (Public Law 106-
178) [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 Nonproliferation Act of 2000
(Public Law 106-178) [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)).''
Section Referred to in Other Sections
This section is referred to in sections 2375, 2797b-1, 2797b-2,
2797c of this title; title 50 section 2368; title 50 App. section 2410b.
