22 U.S.C. § 2798 — Sanctions against certain foreign persons

Page 1286 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2797b–2 1 See References in Text note below. 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 sec- tion 2797b(a)(2) of this title under the cir- cumstances 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 simi- lar capability, as well as the specially de- signed production facilities for these systems; (2) the term ‘‘Missile Technology Control Regime’’ or ‘‘MTCR’’ means the policy state- ment, 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 under- standing to which the United States is a party, controls MTCR equipment or tech- nology 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 tech- nology’’ and ‘‘MTCR equipment or tech- nology’’ 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 per- son other than a United States person; (8)(A) the term ‘‘person’’ means a natural person as well as a corporation, business asso- ciation, 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 relat- ing to the development or production of any missile equipment or technology; and (ii) all activities of that government af- fecting 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 des- ignated 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, de- velopment, 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 juris- diction of the United States under this chap- ter; 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, devel- opment, 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 gov- ernmental 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’’. SUBCHAPTER VIII—CHEMICAL OR BIOLOGICAL WEAPONS PROLIFERATION § 2798. Sanctions against certain foreign persons (a) Imposition of sanctions (1) Determination by the President Except as provided in subsection (b)(2), the President shall impose both of the sanctions Page 1287 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2798 1 See References in Text note below. described in subsection (c) if the President de- termines that a foreign person, on or after Oc- tober 28, 1991, has knowingly and materially contributed— (A) through the export from the United States of any goods or technology that are subject to the jurisdiction of the United States, (B) through the export from any other country of any goods or technology that would be, if they were United States goods or technology, subject to the jurisdiction of the United States, or (C) through any other transaction not sub- ject to sanctions pursuant to the Export Ad- ministration Act of 1979,1 to the efforts by any foreign country, project, or entity described in paragraph (2) to use, de- velop, produce, stockpile, or otherwise acquire chemical or biological weapons. (2) Countries, projects, or entities receiving as- sistance Paragraph (1) applies in the case of— (A) any foreign country that the President determines has, at any time after January 1, 1980— (i) used chemical or biological weapons in violation of international law; (ii) used lethal chemical or biological weapons against its own nationals; or (iii) made substantial preparations to en- gage in the activities described in clause (i) or (ii); (B) any foreign country whose government is determined for purposes of section 6(j) 1 of the Export Administration Act of 1979 to be a government that has repeatedly provided support for acts of international terrorism; or (C) any other foreign country, project, or entity designated by the President for pur- poses of this section. (3) Persons against whom sanctions are to be imposed Sanctions shall be imposed pursuant to paragraph (1) on— (A) the foreign person with respect to which the President makes the determina- tion described in that paragraph; (B) any successor entity to that foreign person; (C) any foreign person that is a parent or subsidiary of that foreign person if that par- ent or subsidiary knowingly assisted in the activities which were the basis of that deter- mination; and (D) any foreign person that is an affiliate of that foreign person if that affiliate know- ingly assisted in the activities which were the basis of that determination and if that affiliate is controlled in fact by that foreign person. (b) Consultations with and actions by foreign government of jurisdiction (1) Consultations If the President makes the determinations described in subsection (a)(1) with respect to a foreign person, the Congress urges the Presi- dent to initiate consultations immediately with the government with primary jurisdic- tion over that foreign person with respect to the imposition of sanctions pursuant to this section. (2) Actions by government of jurisdiction In order to pursue such consultations with that government, the President may delay im- position of sanctions pursuant to this section for a period of up to 90 days. Following these consultations, the President shall impose sanctions unless the President determines and certifies to the Congress that that government has taken specific and effective actions, in- cluding appropriate penalties, to terminate the involvement of the foreign person in the activities described in subsection (a)(1). The President may delay imposition of sanctions for an additional period of up to 90 days if the President determines and certifies to the Con- gress that that government is in the process of taking the actions described in the preceding sentence. (3) Report to Congress The President shall report to the Congress, not later than 90 days after making a deter- mination under subsection (a)(1), on the status of consultations with the appropriate govern- ment under this subsection, and the basis for any determination under paragraph (2) of this subsection that such government has taken specific corrective actions. (c) Sanctions (1) Description of sanctions The sanctions to be imposed pursuant to subsection (a)(1) are, except as provided in paragraph (2) of this subsection, the following: (A) Procurement sanction The United States Government shall not procure, or enter into any contract for the procurement of, any goods or services from any person described in subsection (a)(3). (B) Import sanctions The importation into the United States of products produced by any person described in subsection (a)(3) shall be prohibited. (2) Exceptions The President shall not be required to apply or maintain sanctions under this section— (A) in the case of procurement of defense articles or defense services— (i) under existing contracts or sub- contracts, including the exercise of op- tions for production quantities to satisfy United States operational military re- quirements; (ii) if the President determines that the person or other entity to which the sanc- tions would otherwise be applied is a sole source supplier of the defense articles or services, that the defense articles or serv- ices are essential, and that alternative sources are not readily or reasonably available; or (iii) if the President determines that such articles or services are essential to Page 1288 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2799 the national security under defense co- production agreements; (B) to products or services provided under contracts entered into before the date on which the President publishes his intention to impose sanctions; (C) to— (i) spare parts, (ii) component parts, but not finished products, essential to United States prod- ucts or production, or (iii) routine servicing and maintenance of products, to the extent that alternative sources are not readily or reasonably available; (D) to information and technology essen- tial to United States products or production; or (E) to medical or other humanitarian items. (d) Termination of sanctions The sanctions imposed pursuant to this sec- tion shall apply for a period of at least 12 months following the imposition of sanctions and shall cease to apply thereafter only if the President determines and certifies to the Con- gress that reliable information indicates that the foreign person with respect to which the de- termination was made under subsection (a)(1) has ceased to aid or abet any foreign govern- ment, project, or entity in its efforts to acquire chemical or biological weapons capability as de- scribed in that subsection. (e) Waiver (1) Criterion for waiver The President may waive the application of any sanction imposed on any person pursuant to this section, after the end of the 12-month period beginning on the date on which that sanction was imposed on that person, if the President determines and certifies to the Con- gress that such waiver is important to the na- tional security interests of the United States. (2) Notification of and report to Congress If the President decides to exercise the waiv- er authority provided in paragraph (1), the President shall so notify the Congress not less than 20 days before the waiver takes effect. Such notification shall include a report fully articulating the rationale and circumstances which led the President to exercise the waiver authority. (f) ‘‘Foreign person’’ defined For the purposes of this section, the term ‘‘foreign person’’ means— (1) an individual who is not a citizen of the United States or an alien admitted for perma- nent residence to the United States; or (2) a corporation, partnership, or other enti- ty which is created or organized under the laws of a foreign country or which has its prin- cipal place of business outside the United States. (Pub. L. 90–629, ch. 8, § 81, as added and amended Pub. L. 102–182, title III, §§ 305(b), 309(b)(2), Dec. 4, 1991, 105 Stat. 1250, 1258.) Editorial Notes REFERENCES IN TEXT The Export Administration Act of 1979, referred to in subsec. (a)(1)(C), (2)(B), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, which was classified principally to chapter 56 (§ 4601 et seq.) of Title 50, War and National Defense, prior to repeal by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232, except for sections 11A, 11B, and 11C thereof (50 U.S.C. 4611, 4612, 4613). Sec- tion 6 of the Act was classified to section 4605 of Title 50 prior to repeal. PRIOR PROVISIONS A prior subchapter VIII, consisting of former section 2798, as added by Pub. L. 102–138, title V, § 505(b), Oct. 28, 1991, 105 Stat. 727, was substantially identical to subchapter VIII, as added by section 305(b) of Pub. L. 102–182, prior to repeal by Pub. L. 102–182, title III, § 309(a), Dec. 4, 1991, 105 Stat. 1258. AMENDMENTS 1991—Subsec. (a)(1). Pub. L. 101–182, § 309(b)(2), sub- stituted ‘‘October 28, 1991’’ for reference to the ‘‘date of the enactment of this section’’ which was enacted Dec. 4, 1991. Executive Documents DELEGATION OF FUNCTIONS For delegation of certain functions of the President under this section, see Ex. Ord. No. 12851, § 1(a), June 11, 1993, 58 F.R. 33181, set out as a note under section 2797 of this title. SUBCHAPTER IX—TRANSFER OF CERTAIN CFE TREATY-LIMITED EQUIPMENT TO NATO MEMBERS § 2799. Purpose The purpose of this subchapter is to authorize the President to support, consistent with the CFE Treaty, a NATO equipment transfer pro- gram that will— (1) enhance NATO’s forces, (2) increase NATO standardization and inter- operability, and (3) better distribute defense burdens within the NATO alliance. (Pub. L. 90–629, ch. 9, § 91, as added Pub. L. 102–228, § 2, Dec. 12, 1991, 105 Stat. 1691.) § 2799a. CFE Treaty obligations The authorities provided in this subchapter shall be exercised consistent with the obliga- tions incurred by the United States in connec- tion with the CFE Treaty. (Pub. L. 90–629, ch. 9, § 92, as added Pub. L. 102–228, § 2, Dec. 12, 1991, 105 Stat. 1691.) § 2799b. Authorities (a) General authority The President may transfer to any NATO/CFE country, in accordance with NATO plans, de- fense articles— (1) that are battle tanks, armoured combat vehicles, or artillery included within the CFE Treaty’s definition of ‘‘conventional arma- ments and equipment limited by the Treaty’’; (2) that were, as of the date of signature of the CFE Treaty, in the stocks of the Depart- ment of Defense and located in the CFE Trea- ty’s area of application; and