§ 2797b. Transfers of missile equipment or technology by foreign persons
(a)
Sanctions
(1)
Subject to subsections (c) through (g) [1] of this section, 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,
or if the President has made a determination with respect to a foreign person under section
2410b
(b)(1) of title
50, Appendix, 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—
(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—
(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
(c)
Effect of enforcement actions by MTCR adherents
Sanctions set forth in subsection (a) of this section 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—
(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) of this section stating that a proposed activity would not subject a person to sanctions under this section, the President may waive the application of subsection (a) of this section 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 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) of this section 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 2405(j)(1)(A) [2] of title 50, Appendix, 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—
(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
(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
[1] See References in Text note below.
[2] So in original. Probably should be preceded by “section”.