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

2,475 words·~11 min read·/usc/title-22/section-2797b

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(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

(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 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

(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, § 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.)