tween the United States and such country regarding the terms and conditions of the country's adherence to the MTCR.

Sec. 74.248 Definitions.

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 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 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),249 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; 250 and

(9) the term "otherwise engaged in the trade of" means, with respect to a particular export or transfer, to be a freight for

248 22 U.S.C. 2797c.

249 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)".

250 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”.

warder or designated exporting agent, or a consignee or end user of the item to be exported or transferred.

CHAPTER 8 CHEMICAL OR BIOLOGICAL WEAPONS PROLIFERATION 251

SEC. 81.252, 253, 254 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,255 has knowingly and materially contributed

251 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. 252 22 U.S.C. 2798.

253 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(cX1XA) of the AEČA and section 11C(cX1XA) of the EAA, pursuant to a determination made by the Secretary of State under section 81(aX1) of the AECA or section 11C(aX1) of the EAA, as well as the authority and duties vested in me to make the determinations provided for in section 81(cX2) of_the_AECA and section 11C(cX2) 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(cX2) of the AECA and section 11(cX2) of the EAA).

"(2) The authority and duties vested in me to prohibit certain imports as provided in section 81(cX1XB) of the AECA and section 11C(cX1XB) of the EAA, pursuant to a determination made by the Secretary of State under section 81(aX1) of the AECA or section 11C(aX1) of the EAA, and the obligation to implement the exceptions provided in section 81(c)(2) of the AECA and section 11Č(cX2) of the EAA, insofar as the exceptions affect imports of goods into the United States, are delegated to the Secretary of the Treasury."

254 In Department of State Public Notice 1958 of February 27, 1994, the Assistant Secretary of State for Political-Military Affairs determined that, pursuant to sections 81(a) and 81(b) of this Act, and sections 11C(a) and 11C(b) of the Export Administration Act, "three entities in Thailand have engaged in chemical weapons proliferation activities that require the imposition of sanctions". Sanctions were imposed for not less than one year against W & M Limited Partnership, SPC Supachoke, and The Handle Group Company, all of Thailand (59 F.R. 10663).

In Department of State Public Notice 2176 of March 1, 1995, the U.S. Government determined that, pursuant to sections 81(a) and 81(b) of this Act, and sections 11C(a) and 11C(b) of the Export Administration Act, three entities in the Asian-Pacific region have engaged in chemical weapons proliferation activities that require the imposition of sanctions". Sanctions were imposed for not less than one year against Asian Ways Limited, WorldCo Limited, and Mainway International (60 F.R. 13201).

Determinations relating to section 81 were issued in five cases in 1994 where it was "concluded that publication of the determination would be harmful to the national security of the United States.": Department of State Public Notice 1959 of February 16, 1994 (59 F.R. 10663), Public Notice 2030 of June 2, 1994 (59 F.R. 33810); Public Notice 2121 of November 21, 1994 (59 F.R. 61648), and Public Notice 2142 of December 14, 1994 (59 F.R. 65837).

255 Sec. 309(aX2) 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.

(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 subject to sanctions pursuant to the Export Administration Act of 1979, to the efforts by any foreign country, project, or entity described in paragraph (2) to use, develop, produce, stockpile, or otherwise acquire chemical or biological weapons.

(2) COUNTRIES, PROJECTS, OR ENTITIES RECEIVING ASSISTANCE.-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 engage in the activities described in clause (i) or (ii);

(B) any foreign country whose government is determined for purposes of section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405(j)) 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 purposes 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 determination 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 parent or subsidiary knowingly assisted in the activities which were the basis of that determination; and

(D) any foreign person that is an affiliate of that foreign person if that affiliate knowingly 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 President to initiate consultations immediately with the government with primary jurisdiction 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 Presider.

may delay imposition 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, including 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 Congress 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 determination under subsection (a)(1), on the status of consultations with the appropriate government 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 subcontracts, including the exercise of options for production quantities to satisfy United States operational military requirements;

(ii) if the President determines that the person or other entity to which the sanctions would otherwise be applied is a sole source supplier of the defense articles or services, that the defense articles or services 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 the national security under defense coproduction 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 products 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 essential to United States products or production; or

(E) to medical or other humanitarian items.

(d) TERMINATION OF SANCTIONS.-The sanctions imposed pursuant to this section 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 Congress that reliable information indicates that the foreign person with respect to which the determination was made under subsection (a)(1) has ceased to aid or abet any foreign government, project, or entity in its efforts to acquire chemical or biological weapons capability as described 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 Congress that such waiver is important to the national security interests of the United States.

(2) NOTIFICATION OF AND REPORT TO CONGRESS.-If the President decides to exercise the waiver 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) DEFINITION OF FOREIGN PERSON.-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 permanent residence to the United States; or

(2) a corporation, partnership, or other entity which is created or organized under the laws of a foreign country or which has its principal place of business outside the United States. CHAPTER 9-TRANSFER OF CERTAIN CFE TREATYLIMITED EQUIPMENT TO NATO MEMBERS 256

SEC. 91.2

257 PURPOSE.

The purpose of this chapter is to authorize the President to support, consistent with the CFE Treaty, a NATO equipment transfer program that will

(1) enhance NATO's forces,

(2) increase NATO standardization and interoperability, and (3) better distribute defense burdens within the NATO alli

ance.

256 Sec. 2 of the Conventional Forces in Europe Treaty Implementation Act of 1991 (Public Law 102-228; 105 Stat. 1691) added chapter 9, secs. 91-95.

257 22 U.S.Č. 2799.