22 USC 2797 - Transfers of missile equipment or technology by foreign persons

Collapse to view only § 2797b. Transfers of missile equipment or technology by foreign persons

§ 2797. Licensing
§ 2797a. Denial of transfer of missile equipment or technology by United States persons
§ 2797b. Transfers of missile equipment or technology by foreign persons
§ 2797b-1. Notification of admittance of MTCR adherents
§ 2797b-2. Authority relating to MTCR adherents
§ 2797c. Definitions

§ 2797. Licensing

(a) Establishment of list of controlled items

(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.

(d) Exports to space launch vehicle programs

(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.)

§ 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

1 See References in Text note below.

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

(d) WaiverThe 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.)

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

(a) Sanctions

(1) Subject to subsections (c) through (g),1

1 See References in Text note below.

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 generalExcept 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

(c) Effect of enforcement actions by MTCR adherentsSanctions 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

(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

(g) Additional waiverThe 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) ExceptionsThe 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.)

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

(a) Policy report

(b) Intelligence assessment report

(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.)

§ 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 generalFor 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

1 See References in Text note below.

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 definedFor 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.)