operative research, development, testing, or evaluation. The Secretary may accept as a loan or a gift from a country that is a NATO or major non-NATO ally materials, supplies, or equipment for such purpose.

(2) Each loan or gift transaction entered into by the Secretary under this section shall be provided for under the terms of a written agreement between the Secretary and the country concerned. (3) A program of testing or evaluation for which the Secretary may loan materials, supplies, or equipment under this section includes a program of testing or evaluation conducted solely for the purpose of standardization, interchangeability, or technical evaluation if the country to which the materials, supplies, or equipment are loaned agrees to provide the results of the testing or evaluation to the United States without charge.

(b) The materials, supplies, or equipment loaned to a country under this section may be expended or otherwise consumed in connection with any testing or evaluation program without a requirement for reimbursement of the United States if the Secretary

(1) determines that the success of the research, development, test, or evaluation depends upon expending or otherwise consuming the materials, supplies, or equipment loaned to the country; and

(2) approves of the expenditure or consumption of such materials, supplies, or equipment.

(c) The Secretary of Defense may not loan to a country under this section any material if the material is a strategic and critical material and if, at the time the loan is to be made, the quantity of the material in the National Defense Stockpile (provided for under section 3 of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98b)) is less than the quantity of such material to be stockpiled, as determined by the President under section 3(a) of such Act.

(d) For purposes of this section, the term "NATO 298 ally" means a member country of the North Atlantic Treaty Organization (other than the United States).299

CHAPTER 7-CONTROL OF MISSILES AND MISSILE

EQUIPMENT OR TECHNOLOGY 300

Sec. 71.301 Licensing.

(a) ESTABLISHMENT OF LIST OF CONTROLLED ITEMS.-The Secretary of State, in consultation with the Secretary of Defense 302

298 Sec. 147(a)(3)(B)(i) of Public Law 104-164 (110 Stat. 1435) struck out "or major non-NATO" after "NATO".

299 Sec. 147(a)(3)(B)(ii) of Public Law 104-164 (110 Stat. 1435) struck out “or a foreign country other than a member nation of NATO designated as a major non-NATO ally under section 2350a(i)(3) of title 10, United States Code" after the parentheses. Previously, sec. 705(d)(2) of Public Law 102-25 (105 Stat. 120) struck out "section 1105 of the National Defense Authorization Act for Fiscal Year 1987 (22 U.S.C. 2767a)" and inserted in lieu thereof "section 2350a(i)(3) of title 10, United States Code". Sec. 1105 of the National Defense Authorization Act for Fiscal Year 1987 was repealed in 1989.

300 Sec. 1703 of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101510; 104 Stat. 1745) added chapter 7, secs. 71-74.

301 22 U.S.C. 2797.

302 Sec. 1225(a)(4) of the Foreign Affairs Agencies Consolidation Act of 1998 (division G, subdivision A of Public Law 105-277; 112 Stat. 2681) struck out ", the Director of the Arms Control and Disarmament Agency," after "Secretary of Defense". The text had originally been added by Continued

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 6(1) of the Export Administration Act of 1979.

(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.303

(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 304 the license application and accompanying documents issued to the applicant, to the extent that the relevant Secretary 305 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,306 and with other appropriate Government agencies, that will ensure effective monitoring of transfers of MTCR equipment or technology and other missile technology.

(d) 307 EXPORTS TO SPACE LAUNCH VEHICLE PROGRAMS.-Within 15 days 308 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 Act 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

sec. 714(a)(3) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236; 108 Stat. 497).

303 Sec. 1225(a)(5) of the Foreign Affairs Agencies Consolidation Act of 1998 (division G, subdivision A of Public Law 105-277; 112 Stat. 2681) struck out "and the Director of the United States Arms Control and Disarmament Agency" after "Secretary of Defense". The text had originally been added by sec. 714(a)(4) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236; 108 Stat. 497).

304 Sec. 1225(a)(6)(A) of the Foreign Affairs Agencies Consolidation Act of 1998 (division G, subdivision A of Public Law 105-277; 112 Stat. 2681) struck out ", the Secretary of Commerce, and the Director of the United States Arms Control and Disarmament Agency" and inserted in lieu thereof "and the Secretary of Commerce". Previously, sec. 714(a)(5)(A) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236; 108 Stat. 497), made such an amendment in the reverse.

305 Sec. 1225(a)(6)(B) of the Foreign Affairs Agencies Consolidation Act of 1998 (division G, subdivision A of Public Law 105-277; 112 Stat. 2681) struck out "or the Director" after "relevant Secretary". Previously, sec. 714(a)(5)(B) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236; 108 Stat. 497), made such an amendment in the reverse. 306 Sec. 1225(a)(7) of the Foreign Affairs Agencies Consolidation Act of 1998 (division G, subdivision A of Public Law 105-277; 112 Stat. 2681) struck out with the Director of the United States Arms Control and Disarmament Agency," after "Director of Central Intelligence," Previously, sec. 714(a)(6) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236; 108 Stat. 497), made such an amendment in the reverse.

307 Sec. 735(c) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236; 108 Stat. 506), added subsec. (d).

308 Sec. 708(c) of the Security Assistance Act of 2000 (Public Law 106-280; 114 Stat. 863) struck out "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 Act 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," and inserted in lieu thereof "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 Act 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,”.

Category I of the MTCR Annex, the Secretary shall transmit to the Congress 309 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.

Sec. 72,310,311 Denial of the 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 38 of this Act, section 5 or 6 of the Export Administration Act of 1979 (50 U.S.C. App. 2404, 2405), or any regulations or orders issued under any such provisions,

(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,

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

309 Sec. 704 of the Security Assistance Act of 2000 (Public Law 106-280; 114 Stat. 861) provided the following:

"SEC. 704. MTCR REPORT TRANSMITTALS.

"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 of the House of Representatives and the Committee on Foreign Relations and the Committee on Banking, Housing and Urban Affairs of the Senate.".

310 22 U.S.C. 2797a.

311 Executive Order 12851 of June 11, 1993 (58 F.R. 33181), provided for the administration of proliferation sanctions, Middle East Arms Control, and related congressional reporting requirements, including the following:

"Sec. 2. Missile Proliferation Sanctions. (a) Arms Export Control Act. The authority and duties vested in me by section 72-73 of the AECA (22 U.S.Č. 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 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.".

This Executive order superceded a memorandum of the President of June 25, 1991, delegating authority regarding missile technology proliferation (56 F.R. 31041; July 8, 1991).

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

(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 38(c) of this Act.

(c) 312 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 6(j)(1)(A) of the Export Administration Act of 1979, has repeatedly provided support for acts of international terrorism.

(d) 312 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.

Sec. 73.311,313 Transfers of Missile Equipment or Technology by Foreign Persons.

(a) SANCTIONS. (1) 314 Subject to subsections (c) through (g), if the President determines that a foreign person, after the date of the enactment of this chapter, knowingly

(A) exports, transfers, or otherwise engages in the trade of any MTCR equipment or technology that contributes to the acquisition,315 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 Act,

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

312 Sec. 734(a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236; 108 Stat. 505), redesignated subsec. (c) as subsec. (d), and added a new subsec. (c).

313 22 U.S.C. 2797b.

314 Effective September 1, 2001, the Acting Assistant Secretary of State for Nonproliferation issued a determination pursuant to section 73, finding that "the following foreign persons have engaged in missile technology proliferation activities that require the imposition of the sanctions

"1. National Development Complex (Pakistan) and its sub-units and successors.

"2. China Metallurgical Equipment Corporation (aka CMEC, aka MECC) (China) and its sub-units and successors.". (Department of State Public Notice 3774, 66 F.R. 47256).

315 Sec. 323(a) of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102-138; 105 Stat. 711), inserted “acquisition,”.

(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 11B(b)(1) of the Export Administration Act of 1979, 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) 314 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 Act. (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) 316 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)316 LIMITATION.-Notwithstanding paragraph (1), subsection (a) shall apply to an entity subordinate to a government that engages in exports or transfers described in section 498A(b)(3)(A) of the Foreign Assistance Act of 1961 (22 U.S.C. 2295a(b)(3)(A)).

(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

316 Sec. 1136(b) of the Arms Control and Nonproliferation Act of 1999 (title XI of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (H.R. 3427, enacted by reference in sec. 1000(a)(7) of Public Law 106-113; 113 Stat. 1536)): (1) redesignated paras. (1) and (2) as subparas. (A) and (B), respectively; (2) struck out "Subsection (a)" and inserted in lieu thereof "(1) IN GENERAL.-Except as provided in paragraph (2), subsection (a)" at the beginning of subsec. (b); and (3) added para. (2).