M

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.317

(d) ADVISORY OPINIONS.-The Secretary of State, in consultation with the Secretary of Defense and the Secretary of Commerce,318 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) 319 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 National Security and the Committee on International Relations of the House of Representatives 320 not less than 45 working days 320 before issuing the waiv

317 Sec. 1136(c) 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)) added text beginning at "and if the President certifies".

318 Sec. 1225(a)(8) 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)(7) 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.

319 On November 2, 2001, the Assistant Secretary of State for Nonproliferation determined "that it is essential to the national security of the United States to waive certain aspects of the missile sanctions imposed on the Pakistani Ministry of Defense in November 2000." The determination further stated that "the following missile proliferation sanctions will remain in place: "(1) Sanctions against the Pakistani entities Space and Upper Atmosphere Research Commission (SUPARCO) and National Development Complex (NDC);

"(2) import sanctions against the Pakistani MOD pursuant to section 73(a)(2)(C) of the Arms Export Control Act and section 11B(b)(1)(B)(iii) of the Export Administration Act

"(3) prohibition on new State or Commerce export licenses to and new USG contracts with the Pakistani MOD in the absence of a determination that the transaction is within the scope of the waiver described above)." (Department of State Public Notice 3838; 66 F.R. 56892).

320 Sec. 1408(d) of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104-106; 110 Stat. 494) (1) struck out "the Congress" and inserted in lieu thereof "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 Rep

er. Such notification shall include a report fully articulating the rationale and circumstances which led the President to apply the waiver.

(f) 321 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 6(j)(1)(A) of the Export Administration Act of 1979, has repeatedly provided support for acts of international terrorism.

(g) 321 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) 321 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,

resentatives"; and (2) struck out "20 working days" and inserted in lieu thereof "45 working days".

The House Committee on National Security reverted back to its former name, Committee on Armed Services, in the 106th Congress. No legislation, however, was enacted to universally amend reference to that committee in Public Law. Sec. 1067 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106-65; 113 Stat. 774) did make such a change in specific pieces of legislation and 10 United States Code.

321 Sec. 734(b) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236; 108 Stat. 505), redesignated subsecs. (f) and (g) as subsecs. (g) and (h), and added a new subsec. (f).

(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.

SEC. 73A.322 NOTIFICATION OF ADMITTANCE OF MTCR ADHERENTS. (a) 323 POLICY REPORT.-Following any action by the United States that results in a country becoming a MTCR adherent, the President shall transmit promptly to the Congress a report which describes the rationale for such action, together with an assessment of that country's nonproliferation policies, practices, and commitments. Such report shall also include the text of any agreements or understandings between the United States and such country regarding the terms and conditions of the country's adherence to the MTCR.

(b) 323 INTELLIGENCE ASSESSMENT REPORT.-At such times that a report is transmitted pursuant to subsection (a), the Director of Central Intelligence shall promptly prepare and submit to the Congress a separate report containing any credible information indicating that the country described in subsection (a) has engaged in any activity identified under subparagraph (A), (B), or (C) of section 73(a)(1) within the previous two years.

SEC. 73B.324 AUTHORITY RELATING TO MTCR ADHERENTS.

Notwithstanding section 73(b), the President may take the actions under section 73(a)(2) under the circumstances described in section 74(b)(2).

Sec. 74.325 Definitions.

(a) 326 IN GENERAL.-For purposes of this chapter

(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 re

322 22 U.S.C. 2797b-1. Sec. 735(d) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236; 108 Stat. 506), added sec. 73A. Functions in this section are delegated to the Under Secretary of State for International Security Affairs (Department of State Public Notice 2086; Delegation of Authority No. 214; 59 F.R. 50790).

323 Sec. 1136(d) 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)) struck out "Following any action" and inserted in lieu thereof “(a) POLICY REPORT.-Following any action", and added subsec. (b).

324 22 U.S.C. 2797b-2. Sec. 1137 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 106113; 113 Stat. 1536)) added sec. 73B.

325 22 U.S.C. 2797c.

326 Sec. 1136(a) 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)) added subsec. designation and "IN GENERAL" before "For purposes of", and added subsec. (b).

strict 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 16(2) of the Export Administration Act of 1979 (50 U.S.C. App. 2415(2));

(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),327 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; 328 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) 326 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, 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; or

327 Popularly referred to as the Helms amendment. Sec. 323(b) of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102-138; 105 Stat. 711), struck out "countries where it may be impossible to identify a specific governmental entity referred to in subparagraph (A)" and inserted in lieu thereof “countries with non-market economies (excluding former members of the Warsaw Pact)".

328 Sec. 323(c) of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102-138; 105 Stat. 711), struck out "aircraft, electronics, and space systems or equipment" and inserted in lieu thereof "electronics, space systems or equipment, and military aircraft".

(2) any specific understanding by a country that, notwithstanding section 73(b) of this Act, the United States retains the right to take the actions under section 73(a)(2) of this Act 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 Act.

CHAPTER 8 CHEMICAL OR BIOLOGICAL WEAPONS PROLIFERATION 329

SEC. 81.330, 331 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 described in subsection (c) if the President determines that a foreign person, on or after the date of the enactment of this section,332 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

329 Two forms of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 were enacted in 1991. Sec. 505(b) of the first Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (title V of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993; Public Law 102-138; 105 Stat. 727) added chapter 8, sec. 81.

Sec. 305(b) of the second Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (title III of Public Law 102-182; 105 Stat. 1245) also inserted a new chapter 8, section 81 at this point.

Subsequently, sec. 309(a) of the second Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (title III of Public Law 102-182; 105 Stat. 1245) repealed title V of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (the first Chemical and Biological Weapons Control and Warfare Elimination Act), and all amendments made therein. 330 22 U.S.C. 2798.

331 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:

"Section 1. Chemical and Biological Weapons Proliferation and Use Sanctions. (a) Chemical and Biological Weapons Proliferation. The authority and duties vested in me by section 81 of the Arms Export Control Act, as amended (‘AECA) (22 U.S.C. 2798), and section 11C of the Export Administration Act of 1979, as amended ('EAA') (50 U.S.C. App. 2410c), are delegated to the Secretary of State, except that:

"(1) The authority and duties vested in me to deny certain United States Government contracts, as provided in section 81(c)(1)(A) of the AECA and section 11C(c)(1)(A) of the EAA, pursuant to a determination made by the Secretary of State under section 81(a)(1) of the AECA or section 11C(a)(1) of the EAA, as well as the authority and duties vested in me to make the determinations provided for in section 81(c)(2) of the AECA and section 11C(c)(2) of the EAA are delegated to the Secretary of Defense. The Secretary of Defense shall notify the Secretary of the Treasury of determinations made pursuant to section 81(c)(2) of the AECA and section 11(c)(2) of the EAA).

"(2) The authority and duties vested in me to prohibit certain imports as provided in section 81(c)(1)(B) of the AECA and section 11C(c)(1)(B) of the EAA, pursuant to a determination made by the Secretary of State under section 81(a)(1) of the AECA or section 11C(a)(1) of the EAA, and the obligation to implement the exceptions provided in section 81(c)(2) of the AECA and section 11C(c)(2) of the EAA, insofar as the exceptions affect imports of goods into the United States, are delegated to the Secretary of the Treasury."

332 Sec. 309(a)(2) of Public Law 102-182 (105 Stat. 1258) provides that "the 'date of the enactment of this section' *** shall be deemed to refer to the date of the enactment of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102-138)", which was enacted on October 28, 1991.