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Weapons of Mass Destruction (WMD)

[CRS Report for Congress]

Nuclear, Biological, Chemical, and
Missile Proliferation Sanctions:
Selected Current Law

November 25, 1997

Foreign Affairs and National Defense Division

CRS

Prepared for the Subcommittee on International Security,
Proliferation, and Federal Services of the U. S. Senate Committee
on Governmental Affairs


The use of sanctions specifically to stem weapons proliferation is a relatively new development in U. S. foreign policy. While earlier legislation required the cutoff of foreign aid to countries engaged in specified nuclear proliferation activities and mentioned other sanctions as a possible mechanism for bringing countries into compliance with goals of treaties or international agreements, 1 it was not until 1990 that Congress enacted explicit guidelines for trade sanctions related to missile proliferation. A requirement for the President to impose sanctions against U. S. persons or foreign persons engaging in trade of items or technology listed in the Missile Technology Control Regime Annex (MTCR Annex) was added that year to the Arms Export Control Act and to the Export Administration Act of 1979. Subsequently, Congress legislated economic sanctions against countries that contribute to the proliferation of chemical, biological, and nuclear weapons in a broad array of laws. Fol-lowing is an alphabetic listing and brief description of legal provisions that require or authorize the imposition of some form of economic sanction against countries, companies, or persons who violate U. S. nonproliferation norms. 2


1 The International Atomic Energy of 1954 and the Nuclear Non- Proliferation Act of 1978 sought to increase international participation in and adherence with the International Atomic Energy Agency and Nuclear Non- Proliferation Treaty, respectively, and, to that end, authorized the President to enter into international discussions, including the imposition of sanctions against those who abrogate or violate these international agreements.

2 The list is arranged alphabetically, with references to U. S. Code and Legislation on Foreign Relations in parentheses, where applicable. Legislative history of pertinent amendments is also given, in italics.


Nuclear, Biological, Chemical, and
Missile Proliferation Sanctions:
Selected Current Law

Contents

18 U. S. C. (relating to criminal procedure)
  • 18 USC 2332a -- punishment guidelines related to weapons of mass destruction
  • 18 USC 2332c -- punishment guidelines related to chemical weapons

    Agreement for Nuclear Cooperation Between the United States and China, Joint Resolution Approving the Proposed Agreement for Nuclear Cooperation (Public Law 99- 183

  • Presidential certification relating to China's transactions with non- nuclear- weapon states

    Arms Export Control Act (Public Law 90- 629)

  • Sec. 3( f) -- nuclear nonproliferation
  • Sec. 38 -- United States Munitions List (USML)
  • Sec. 40 -- international terrorism
  • Chapter 7 -- control of missiles and missile equipment or technology
  • Chapter 8 -- chemical or biological weapons proliferation
  • Chapter 10 -- nuclear nonproliferation controls

    Atomic Energy Act of 1954 (Public Law 83- 703)

  • Sec. 129 -- prohibition of transfer of nuclear materials to certain non- nuclear- weapon states

    Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (Public Law 102- 182)

  • Sec. 307 -- preparation to use chemical or biological weapons

    Export Administration Act of 1979 (Public Law 96- 72) 3
    3 Authority granted by the Export Administration Act expired on August 20, 1994. The President continued its provisions in Executive Order 12924 of August 19, 1994 (59 FR 43437).

  • Sec. 5 -- national security controls
  • Sec. 6 -- foreign policy controls
  • Sec. 11A -- multilateral export control violations
  • Sec. 11B -- missile proliferation control violations
  • Sec. 11C -- chemical and biological weapons proliferation sanctions

    Export- Import Bank Act of 1945 (Public Law 79- 173)

  • Sec. 2 -- nuclear proliferation

    Foreign Assistance Act of 1961 (Public Law 87- 195)

  • Sec. 620A -- international terrorism
  • Sec. 620E -- Pakistan, nuclear explosive device development
  • Sec. 620G -- international terrorism
  • Sec. 620H -- international terrorism

    International Emergency Economic Powers Act (Public Law 95- 223)

  • Sec. 203 -- broad Presidential authority relating to national emergency

    Iran- Iraq Arms Nonproliferation Act of 1992 (Public Law 102- 484)

  • Sec. 1603 -- broad range of prohibitions against transactions with Iraq
  • Sec. 1604 -- mandatory sanctions against persons assisting Iran or Iraq in acquiring chemical, biological, nuclear, or destabilizing numbers and types of advanced conventional weapons
  • Sec. 1605 -- mandatory sanctions against foreign governments assisting Iran or Iraq in acquiring chemical, biological, nuclear, or destabilizing numbers and types of advanced conventional weapons

    Iraq Sanctions Act (Public Law 101- 513)

  • Sec. 586C -- continues sanctions from Iraq- Kuwait crisis
  • Sec. 586D -- compliance with U. N. sanctions against Iraq
  • Sec. 586G -- broad range of sanctions against Iraq
  • Sec. 5865H -- waiver authority
  • Sec. 586I -- prohibition of supercomputer exportation to Iraq

    National Emergencies Act (Public Law 94- 412)

  • Title II -- authority for President to declare, administer, and terminate national emergencies

    National Security Act of 1947

  • Secs. 901- 904 -- Presidential authority to delay imposition of sanctions

    Nuclear Non- Proliferation Act of 1978 (Public Law 95- 242)

  • Sec. 304, 309 -- guidelines for nuclear export licenses
  • Sec. 402 -- nuclear material enrichment

    Nuclear Proliferation Prevention Act of 1994 (Public Law 103- 236)

  • Sec. 821 -- U. S. Government procurement sanctions
  • Sec. 823 -- votes against loans in international financial institutions
  • Sec. 824 -- prohibition of financial assistance for nuclear proliferation

    18 U. S. C. (relating to criminal procedure)

    18 USC 2332a makes it an offense to use, threaten to use, attempt or conspire to use weapons of mass destruction (WMD) against a national of the United States or within the United States. Weapons of mass de-struction include "any biological agent, toxin, or vector." One found to have used a WMD in such a way "shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years of for life."

    18 USC 2332c states punishment guidelines for anyone found to have used, attempted or conspired to use a chemical weapon against: (1) a U. S. national outside the United States, (2) any person within the United States; or (3) any property owned, leased or used by the United States, here or abroad. Punishment may be any term of imprisonment up to life or, if death occurs from the person's actions, a years- term of imprisonment up to life or the death penalty.

    Sec. 60023( a) of Public Law 103- 322 (108 Stat. 1980) added sec. 2332a. The section was substantially reworked by the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104- 132; approved April 24, 1996). Sec. 521( a) of that Act added 18 USC 2332c.

    Agreement for Nuclear Cooperation Between the United States and China, Joint Resolution Approving the Proposed Agreement for Nuclear Cooperation (Public Law 99- 183; 99 Stat. 1174) (LFR '94, vol. IV, p. 384)

    The agreement requires Presidential certification that China is not violating section 129 of the Atomic En-ergy Act of 1954, which places restrictions on exports to nations that assist or encourage non- nuclear weapon states to acquire nuclear weapons.

    No amendments.

    Arms Export Control Act (Public Law 90- 629; approved October 22, 1968) (LFR '96, vol. I- A, p. 301)

    The Arms Export Control Act (AECA), as amended, authorizes U. S. Government military sales, loans, leases, and financing, and licensing of commercial arms sales to other countries. The AECA coordinates such actions with other foreign policy considerations, including nonproliferation, and determines eligibility of recipi-ents for military exports, sales, leases, loans, and financing.

    Section 3( f) (22 U. S. C. 2753( f)) prohibits U. S. military sales or leases to any country that the President determines is in material breach of binding commitments to the United States under international treaties or agreements regarding nonproliferation of nuclear explosive devices and unsafeguarded special nuclear material.

    Subsec. (f) was added by sec. 822( a)( 1) of the Nuclear Proliferation Prevention Act (title VIII of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995); Public Law 103- 236; approved April 30, 1994.

    Section 38 (22 U. S. C. 2778) authorizes the President to control the import and export of defense articles and services, to provide foreign policy guidelines to U. S. importers/ exporters, and to promulgate the United States Munitions List constituting what defense articles and services are regulated. Section 38( c) establishes that any person who willfully violates any provision of the section (or of section 39 relating to the reporting of fees, contributions, gifts, and commissions paid by those involved in commercial sales of defense articles or services) may be fined not more than $1 million, imprisoned not more than ten years, or both. Section 38( e) caps the civil penalty for violations under this section at $500,000.

    Section 38 was added by sec. 212( a)( 1) of the International Security Assistance and Arms Export Control Act of 1976; Public Law 94- 329; approved June 30, 1976. Subsec. (c) was added by the 1976 amendment; the fine and imprisonment terms were amended, however, by sec. 119( a) of the International Security and Develop-ment Cooperation Act of 1985; Public Law 99- 83; approved August 8, 1985. Formerly, fine was "not more than $100,000," and period of imprisonment was not more than two years. Subsec. (e) was added by the 1976 amendment. Sec. 119( b) of Public Law 99- 83, in 1985, however, added the language that caps civil penalties.

    Section 40 (22 U. S. C. 2780) prohibits exporting or otherwise providing munitions, providing financial assistance to facilitate transfer of munitions, granting eligibility status for such transfers, issuing licenses for such transfers, or otherwise facilitating the acquisition of munitions to a country the government of which "has repeatedly provided support for acts of international terrorism." The section includes in its definition of acts of international terrorism, "all activities that the Secretary [of State] determines willfully aid or abet the international proliferation of nuclear explosive devices to individuals or groups or willfully aid or abet an individual or groups in acquiring unsafeguarded special nuclear material."

    The President may rescind the Secretary's determination (sec. 40( f)) by reporting to the Speaker of the House and the Chairman of the Senate Foreign Relations Committee, before issuing the rescission, that the leadership and policies of the country in question have changed, the government is not supporting international terrorism, and the government has issued assurances that it will not support international terrorism in the future. Congress may block the rescission of the terrorist determination by enacting a joint resolution. The President, however, may unilaterally waive any or all of the prohibitions in this section if he determines to do so is essential to the national security interests of the United States, and so reports to Congress.

    Section 40 was added by the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Public Law 99- 399; approved August 27, 1986), and later amended and restated by the Anti- Terrorism and Arms Export Amend-ments Act of 1989 (Public Law 101- 222; approved August 27, 1986). Sec. 822( a)( 2)( A) of the Nuclear Proliferation Prevention Act of 1994 (title VIII of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995; Public Law 103- 236; approved April 30, 1994) added a definition of acts of international terrorism that would lead the Secretary of State to make a determination. The same section added definitions "nuclear explosive device" and "unsafeguarded special nuclear material". Sec. 321 of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102- 138; approved October 28, 1991) made technical changes to the guidelines for Congress's passage of a joint resolution relating to the section.

    Sections 72 and 73 (22 U. S. C. 2797a, 2797b), require sanctions against any U. S. citizen or any foreign person whom the President determines to be engaged in exporting, transferring, conspiring to export or transfer, or facilitating an export or transfer of, any equipment or technology identified by the Missile Technology Con-trol Regime (MTCR) that "contributes to the acquisition, design, development, or production of missiles in a country that is not an MTCR adherent ..."

    Sanctions vary with the type of equipment or technology exported, and are increasingly severe where the type of equipment or technology is more controlled. Worst- case sanctions may be imposed for not less than 2 years, and include denial of U. S. Government contracts, denial of export licenses for items on the U. S. Muni-tions List, and a prohibition on importation into the United States.

    The law allows several exceptions, wherein some or all of the sanctions may not be imposed against foreign persons:

  • if an MTCR adherent finds the foreign person innocent of wrongdoing in relation to the transaction;

  • if the State Department issues an advisory opinion to the individual stating that a transaction would not result in sanctions;

  • if the export, transfer, or trading activity is authorized by the laws of an MTCR adherent and not ob-tained by misrepresentation or fraud;

  • if the export, transfer, or trade is made to an end- user in a country that is an MTC adherent;
  • in the case of foreign persons fulfilling contracts for defense services or defense articles; then the President will not prohibit importations if

    -- the articles or services are considered essential to U. S. national security,
    -- the President determines that the provider is a sole supplier and the articles or services are essential to U. S. national security, or
    -- the President determines that the articles or services are essential to U. S. national security under defense cooperation agreements or NATO Programs of Cooperation;

  • in the case of foreign persons importing products or services into the United States in fulfillment of contracts entered into before the President announces intentions to impose sanctions, then the President will not prohibit importations; or

  • in the case of foreign persons providing spare parts, component parts essential to U. S. products or production, routine service and maintenance, essential information and technology.

    The President may waive the sanction, for either a U. S. citizen or foreign person, if he certifies to Congress that it is essential to the national security of the United States, or that the individual provides a product or service essential to U. S. national security, and that that person is sole provider of the product or service.

    Section 1703 of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101- 510; ap-proved November 5, 1990) added sections 71- 74. In section 72, sec. 734( a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103- 236; approved April 30, 1994) added paragraph about "presumption" in guidelines for Presidential determination on transfers of MTCR Annex materials. In sec. 73, sec. 323( a) of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102- 138; approved October 28, 1991) added assisting another country in acquiring missiles to the list of sanctionable acts. Sec. 734( b) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 added the Director of the Arms Control and Disarmament Agency to those with whom the Secretary of State consults when administer-ing the policy. Sec. 1408 of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104- 106; approved February 10, 1996) made technical changes to reporting requirements relating to issuing a waiver.

    Section 74 of the AECA (22 U. S. C. 2797c) provides definitions of terms that also affect how the sanctions may be applied. For example, while the MTCR is a policy statement originally announced on April 16, 1987, by the United States, the United Kingdom, Germany, France, Italy, Canada, and Japan, the term "MTCR adherent" in this law is much more broadly defined, to include the countries that participate 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." As another example, the term "person" has changed over time. The law formerly included as part of the definition of "person," "countries where it may be impossible to identify a specific governmental entity." This has been amended to refer to "countries with non-market economies (excluding former members of the Warsaw Pact)." The same definition formerly restricted government activity relating to development of aircraft; this now refers specifically to military aircraft.

    Sec. 323 of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102- 138; approved October 28, 1991) amended the definition of "person" to target ChinaŃ the "Helms amendment," and narrowed the definition of "person" to include activities of a government affecting the development of, among other things, "military aircraft" (formerly referred to "aircraft").

    Section 81 (22 U. S. C. 2798) requires a sanction preventing government procurement, contracts with the U. S. Government, and imports from foreign persons who knowingly and materially contribute, through exports from the United States or another country, or through other transactions, to foreign efforts to use, develop, produce, stockpile, or otherwise acquire chemical or biological weapons. Foreign persons are sanctionable if the recipient country has used chemical or biological weapons in violation of international law, has used chemical or biological weapons against its own people, or has made preparations to engage in such violations. Foreign persons are sanctionable if the recipient country has been determined to be a supporter of international terrorism, pursuant to section 6( j) of the Export Administration Act, or if the President has specifically designated the country as restricted under this section.

    The President may delay the imposition of sanctions for up to 180 days if he is in consultation with the sanctionable person's government to bring that government to take specific and effective steps to terminate the sanctionable activities. The President may not be required to impose sanctions if the sanctionable person otherwise provides goods needed for U. S. military operations, if the President determines that the sanctionable person is a sole source provider of some good or service, or if the President determines that goods and services provided by the sanctionable person are essential to U. S. national security under defense cooperation agreements. Excep-tions are also made for completing outstanding contracts, the purchase of spare or component parts, service and maintenance otherwise not readily available, information and technology essential to U. S. products or production, or medical or other humanitarian items.

    The President may terminate the sanctions after 12 months, if he determines and certifies to Congress that the sanctioned person no longer aids or abets any foreign government, project, or entity in its efforts to acquire biological or chemical weapons capability. The President may waive the application of a sanction after a year of its imposition, if he determines it is in U. S. national security interests to do so. Not less than 20 days before a national security waiver is issued, the President must notify Congress, fully explaining the rationale for waiving the sanction.

    Sec. 81 was added by sec. 305 of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (title III of Public Law 102- 182; approved December 4, 1991). 4


    4 Two versions of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 were enacted. Title V of the Foreign Relations Relations Authorization Act, Fiscal Years 1992 and 1993 (public Law 102- 138; approved) enacted the first. Later in the same session, title III of Public Law 102- 182 (a trade act otherwise unrelated to nonproliferation issues) repealed the first version and enacted a new Chemical and Biological Weapons Control and Warfare Elimination Act of 1991. This report refers only to the second enactment -- that which currently stands in law.

    Section 101 (22 U. S. C. 2799aa) (formerly section 669 of the Foreign Assistance Act of 1961) prohibits foreign economic or miliary assistance to any country that the President determines delivers or receives nuclear enrichment equipment, materials, or technology. The prohibition is not required if the countries involved in the transaction agree to place all materials, equipment, or technology under multilateral safeguard arrangements. The prohibition is not required, furthermore, if the recipient country has an agreement with the International Atomic Energy Agency (IAEA) regarding safeguards.

    The President may waive the sanction if he determines, and certifies to the Speaker of the House and the Senate Committee on Foreign Relations, that denying assistance would have a serious adverse effect on vital U. S. interests, and he has been assured that the country in question will not acquire, develop, or assist others in acquiring or developing nuclear weapons. Congress may negate a certification by enacting a joint resolution stating its disapproval.

    Sec. 826( a) of the Nuclear Proliferation Prevention Act of 1994 (title VIII of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995; Public Law 103- 236; approved April 30, 1994) added secs. 101 and 102. Similar language, however, had been in the Foreign Assistance Act, as secs. 669 and 670. Sec. 669 was added by sec. 305 of the International Security Assistance and Arms Export Control Act of 1976 (Public Law 94- 329; approved June 30, 1976). The section was amended and restated by sec. 12 of the International Security Assistance Act of 1977 (Public Law 95- 92; approved August 4, 1977), which also added sec. 670 to the law. Sec. 669 was further amended by secs. 10( b)( 4) and 12 of the International Security Assistance Act of 1978 (Public Law 95- 384; approved September 26, 1978). Sec. 737( b) of the International Security and Development Coop-eration Act of 1981 (Public Law 97- 113; approved December 29, 1981) amended and restated both secs. 669 and 670. Sec. 1204 of the International Security and Development Cooperation Act of 1985 (Public Law 99- 83); approved August 8, 1985, made further changes to sec. 670 before both sections were repealed in 1994.

    Section 102 (22 U. S. C. 2799aa- 1) (formerly section 670 of the Foreign Assistance Act of 1961) prohibits foreign economic or military assistance to countries that the President determines deliver or receive nuclear reprocessing equipment, material, or technology to or from another country; or any non- nuclear- weapon state which illegally exports, through a person serving as that country's agent, from the United States items that would contribute to nuclear proliferation.

    The President may waive the sanction if he determines, and certifies to the Speaker of the House and the Senate Committee on Foreign Relations, that terminating assistance would adversely impact on the United States' nonproliferation objectives, or would jeopardize the common defense and security. Congress may ne-gate a certification by enacting a joint resolution stating its disapproval.

    The section further prohibits assistance (except humanitarian or food assistance), defense sales, export li-censes for U. S. Munitions List items, other export licenses subject to foreign policy controls, and various credits and loans to any country that the President has determined transfers a nuclear explosive device, design informa-tion, or component to a non- nuclear weapon state, or is a non- nuclear weapon state and receives a nuclear device, design information, or component, or detonates a nuclear explosive device.

    The President may delay the imposition of these sanctions for 30 days, if he certifies to the Speaker of the House and Chairman of the Senate Committee on Foreign Relations that an immediate imposition would be detrimental to U. S. national security.

    Atomic Energy Act of 1954 (LFR '96, vol. II, p. 1440)

    The Atomic Energy Act of 1954 declares U. S. policy for the development, use, and control of atomic energy. The Act authorizes the Nuclear Regulatory Commission to oversee the export of special nuclear materials and nuclear technology in accordance with bilateral and international cooperation agreements negotiated by the Department of State. The Act defines the nature and requirements of those cooperative agreements and the procedure by which Congress reviews them. The Act states export licensing criteria for nuclear materials and sensitive equipment and technology.

    Section 129 (42 U. S. C. 2158) prohibits the transfer of nuclear materials, equipment, or sensitive technology from the United States to any non- nuclear- weapon state that the President finds to have detonated a nuclear explo-sive device, terminated or abrogated safeguards of the International Atomic Energy Agency (IAEA), materially violated an IAEA safeguards agreement, or engaged in manufacture or acquisition of nuclear explosive devices. The section similarly prohibits transfers to any country, or group of countries, that the President finds to have violated a nuclear cooperation agreement with the United States, assisted, encouraged, or induced a non- nuclear-weapon state to engage in certain activities related to nuclear explosive devices, or agreed to transfer reprocessing equipment, materials, or technology to a non- nuclear- weapon state, except under certain conditions.

    The President may waive the restriction if he determines that the prohibition would hinder U. S. nonprolif-eration objectives or jeopardize the common defense and security. Sixty days before a determination is issued, the President is required to forward his reasons for waiving the sanctions to Congress, which may block the waiver by adopting a concurrent resolution. Congress may alternatively counter the Presidential determination with passage of a joint resolution within 45 days of the President's action.

    Enacted as Public Law 83- 703; approved August 30, 1954. Sec. 307 of the Nuclear Non- Proliferation Act of 1978 (Public Law 95- 242; approved March 10, 1978) added sec. 129.

    Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (Public Law 102- 182; approved December 4, 1991; 22 U. S. C. 5601- 5606) (LFR '96, vol. II, p. 1394)

    The Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 mandates U. S. sanctions, and encourages international sanctions, against countries that use chemical or biological weapons in violation of international law.

    The Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 was enacted as title III of Public Law 102- 182 (a law dealing with trade issues unrelated to nonproliferation). No amendments have been enacted. 5


    5 Two versions of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 were enacted. Title V of the Foreign Relations Authorization Act, Fiscal years 1992 and 1993 (public Law 102- 138; approved) enacted the first. Later in the same session, title III of Public Law 102- 182 (a trade act otherwise unrelated to nonproliferation issues) repealed the first version and enacted a new Chemical and Biological Weapons Control and warfare Elimination Act of 1991. This report refers only to the second enactment -- that which currently stands in law.

    Section 307 (22 U. S. C. 5605) requires the President to terminate foreign assistance (except humanitarian, food, and agricultural assistance) arms sales and licenses, credits, guarantees, and certain exports to a govern-ment of a foreign country that he has determined has used or made substantial preparation to use chemical or biological weapons. Within three months, the President must determine and certify to Congress that the govern-ment: is no longer using chemical or biological weapons in violation of international law, is no longer using such weapons against its own people, has provided credible assurances that such behavior will not resume, and is willing to cooperate with U. N. or other international observers to verify that biological and chemical weapons are not still in use. Without this 3- month determination, sanctions are required affecting multilateral development bank loans, U. S. bank loans or credits, exports, imports, diplomatic relations, and aviation access to and from the United States.

    The President may lift the sanctions after a year, with a determination and certification to Congress that the foreign government has met the conditions listed above, and that it is making restitution to those affected by its use of chemical or biological weapons.

    The President may waive the imposition of these sanctions if he determines and certifies to Congress and the appropriate committees that such a waiver is essential to U. S. national security interests.

    Export Administration Act of 1979 (LFR '96, vol. III, p. 1022) [footnote 6]


    6 Authority granted by the Export Administration Act expired on August 20, 1994. The President continued its provisions in Executive Order 12924 of August 19, 1994 (59 FR 43437).

    The Export Administration Act of 1979 (EAA) authorizes the executive branch to regulate private sector exports of particular goods and technology to other countries. The EAA coordinates such actions with other foreign policy considerations, including nonproliferation, and determines eligibility of recipients for exports. Section 5 (50 U. S. C. app. 2404) authorizes the President to curtail or prohibit the export of any goods or services for national security reasons: to comply with other laws regarding a potential recipient country's politi-cal status or political stability, to cooperate with international agreements or understandings, or to protect mili-tarily critical technologies. Section 6 (50 U. S. C. app. 2405) similarly authorizes the President to curtail or prohibit the export of goods or services for foreign policy reasons. Within Section 6, for example, Section 6( j) establishes the State Department's list of countries found to be supporting acts of international terrorism, a list on which many other restrictions and prohibitions in law are based. Section 6( k) restricts exportation of certain crime control equipment. Section 6( l) restricts exportation for a list of dual use goods and technology. Section 6( m) restricts exportation for a list of goods and technology that would directly and substantially assist a foreign government or group in acquiring the capability to develop, produce, stockpile, or deliver chemical or biological weapons.

    Section 11A (50 U. S. C. app. 2410a) requires the President to prohibit, for two to five years, the U. S. Government from contracting with or procuring goods or services from a foreign person that has violated any country's national security export regulations in accordance with the agreement of the Coordinating Committee for Multilateral Export Controls (COCOM), 7 and that the violation results "in substantial enhancement of Soviet and East Bloc capabilities in submarines or antisubmarine warfare, ballistic or antiballistic missiles technology, strategic aircraft, command, control, communications and intelligence, or other critical technologies." The President also is required generally to prohibit importation of products from the sanctioned person. The Presi-dent may impose sanctions at his discretion if the first but not the second condition exists. In this case, the restrictions may be in place no longer than 5 years.


    7 The Coordinating Committee for Multilateral Export Controls (COCOM) agreed to cease to exist on March 31, 1994. Member nations agreed to retain current control lists until a successor organization is established. On December 19, 1995, the United States and 27 other countries, including NATO participants and Russia, agreed to establish a new multilateral export control arrangement. The Wassenaar Agreement for Export Controls for Conventional Arms and Dual- Use Goods and Tech-nologies (" Wassenaar Arrangement") became operational in 1996, but is nonbinding.


    Sanctions may not be required for some goods if contracts with the sanctionable person meet U. S. operational military requirements, if the President determines that the sanctionable person is a sole source provider of an essential defense article or service, or if the President determines that such articles or services are essential to U. S. national security under defense coproduction agreements. The President also may not be required to apply sanctions if he determines that a company affiliated with the sanctionable person had no knowledge of the export control violation. After sanctions have been in place for 2 years, the President may modify terms of the restric-tions under certain conditions, and if he notifies Congress.

    Enacted as Public Law 96- 72; approved September 29, 1979. Sec. 2444 of the Multilateral Export Control Enhancement Amendments Act (title II, subtitle D, part II of the Omnibus Trade and Competitiveness Act of 1988; Public Law 100- 418; approved August 23, 1988) added sec. 11A. The section has not been amended.

    Section 11B (50 U. S. C. app. 2410b) is similar to sections 72 and 73 of the AECA, but authorizes sanctions against U. S. persons and foreign persons who engage in commercial transactions that violate missile prolifera-tion controls. The section requires sanctions against any U. S. citizen who the President determines to be en-gaged in exporting, transferring, conspiring to export or transfer, or facilitating an export or transfer of, any equipment or technology identified by the Missile Technology Control Regime Annex. Sanctions vary with the type of equipment or technology exported; worst- case sanctions deny export licenses for goods on the U. S. Commodity List for not less than 2 years.

    The President may waive the imposition of sanctions if he certifies to Congress that the product or service to be restricted is essential to U. S. national security, and that the provider is a sole source provider.

    The section further requires sanctions against any foreign person who the President determines to be en-gaged in exporting, transferring, conspiring to export or transfer, or facilitating an export or transfer of, any MTCR equipment or technology that contributes to the design, development, or production of missiles in a country that is not an MTCR adherent. Sanctions vary with the type of equipment or technology exported; worst- case sanctions deny licenses for transfer to the foreign person items otherwise controlled by the Export Administration Act for not less than 2 years. The President may also prohibit importation into the United States of products produced by the foreign person.

    The law allows several exceptions, wherein some or all of the sanctions may not be imposed against foreign persons. These exceptions are nearly identical to those found in sections 72 and 73 of the AECA. The President may waive the imposition of sanctions for national security reasons, but must notify Congress beforehand. The Presidential authority to restrict importation is conditional in a manner identical to that in section 73 of the AECA.

    The definition of "MTCR adherent" in section 11B is also identical to that in section 74 of the AECA. The definition of "person," however, retains its earlier form, applying to all "countries where it may be impossible to identify a specific governmental entity," and not adopting the narrower reference to military aircraft but refer-ring to government activity relating to development of aircraft generally.

    Sec. 1702( b) of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101- 510; ap-proved November 5, 1990) added sec. 11B. The section has not been amended.

    Section 11C (50 U. S. C. app. 2410c), similar to Section 81 of the AECA, authorizes the President to apply procurement and import sanctions against foreign persons that he determines knowingly contribute to the use, development, production, stockpile, or acquisition of chemical or biological weapons by exporting goods or technology from the United States or any other country.

    The President may delay the imposition of sanctions for up to 180 days if he is in consultation with the sanctionable person's government to bring that government to take specific and effective steps to terminate the sanctionable activities. The President may not be required to impose or maintain sanctions if the sanctionable person otherwise provides goods needed for U. S. military operations, if the President determines that the sanctionable person is a sole source provider of some good or service, or if the President determines that goods and services provided by the sanctionable person are essential to U. S. national security under defense coopera-tion agreements. Exceptions are also made for completing outstanding contracts, the purchase of spare or com-ponent parts, service and maintenance otherwise not readily available, information and technology essential to U. S. products or production, or medical or other humanitarian items.

    The President may terminate the sanctions after 12 months, if he determines and certifies to Congress that the sanctioned person no longer aids or abets any foreign government, project, or entity in its efforts to acquire biological or chemical weapons capability. The President may waive the application of a sanction after a year of its imposition, if he determines it is in U. S. national security interests to do so. Not less than 20 days before a national security waiver is issued, the President must notify Congress, fully explaining the rationale for waiving the sanction.

    Sec. 505( a) of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (title III of Public Law 102- 182; approved December 4, 1991) added sec. 11C. No amendments have been enacted.

    Export- Import Bank Act of 1945 (LFR '96, vol. III, p. 952)

    The Export- Import Bank Act of 1945 establishes the Export- Import Bank of the United States and autho-rizes the Bank to finance and facilitate exports and imports and the exchange of commodities and services between the United States and foreign countries.

    Section 2( b)( 1)( B) (12 U. S. C. 635( b)( 1)( B)) generally states the United States' policy of administering loan programs through the Export- Import Bank. The section provides that the Bank will deny applications for credit for nonfinancial or noncommercial considerations only when the President determines it is in the U. S. national interest to deny credit to advance. U. S. policies in international terrorism, nuclear proliferation, environmental protection, and human rights.

    The Export- Import Bank Act of 1945 was enacted as Public Law 79- 173; approved July 31, 1945. Sec. 2( b)( 1) has been amended and restated in 1972 (Public Law 92- 126) and again in 1974 (Public Law 93- 646). The language pertaining to "international terrorism, nuclear proliferation, ..." was added by sec. 1904 of the Export- Import Bank Act Amendments of 1978 (title XIX of the Financial Institutions Regulatory and Interest Rate Control Act of 1978; Public Law 95- 630; approved November 10, 1978.

    Section 2( b)( 4) (12 U. S. C. 635( b)( 4)) provides that the Secretary of State can determine, and report to Congress and to the Export- Import Bank Directors, if:

  • any country has agreed to IAEA nuclear safeguards but has materially violated, abrogated, or terminated such safeguards after October 26, 1977;

  • any country has entered into a cooperation agreement with the United States concerning the use of civil nuclear energy, but has violated, abrogated, or terminated any guarantee or other undertaking related to that agreement after October 26, 1977;

  • any country has detonated a nuclear explosive device after October 26, 1977, but is a not a nuclear-weapon state;

  • any country willfully aids or abets, after June 29, 1994, any non- nuclear- weapon state to acquire a nuclear explosive device or to acquire unsafeguarded special nuclear material; or

  • any person knowingly aids or abets, after September 23, 1996, any non- nuclear- weapon state to acquire a nuclear explosive device or to acquire unsafeguarded special nuclear material.

    If such a determination is made relating to a person, the Secretary is urged to consult with that person's government to curtail that person's activities. Consultations are allowed 90 days, at the end of which the Secre-tary will report to Congress as to their progress. After the 90 days, unless the Secretary requests an additional 90 days, or unless the Secretary reports that the violations have ceased, the Ex- Im Bank will not approve any transactions to support U. S. exports to any country, or to or by any person, for which/ whom a determination has been made. The imposition of sanctions may also be waived if the President, 45 days before any transaction is approved, certifies that the violations have ceased, and that steps have been taken to ensure the questionable transactions will not resume. The President may also waive the imposition of sanction if he certifies that to impose them would have a serious adverse effect on vital U. S. interests, or if he certifies that objectionable behavior has ceased.

    Sec. 2( b)( 4) was added by sec. 3( b) of Public Law 95- 143; approved October 26, 1977. Sec. 825 of the Nuclear Proliferation Prevention Act of 1994 (title VIII of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995; Public Law 103- 236; approved April 30, 1994) added "( as defined in section 830( 4) of the Nuclear Proliferation Prevention Act of 1994), or that any country has willfully aided or abetted any non-nuclear- weapons state (as defined in section 830( 5) of that Act) to acquire any such nuclear explosive device or to acquire unsafeguarded special nuclear material (as defined in section 830( 8) of that Act)." to define "nuclear explosive device" and to broaden what acts are sanctionable. This is referred to as a "Glenn Amendment." The section was further amended and restated by sec. 1303 of the National Defense Authorization Act for Fiscal Year 1997 (Public Law 104- 201; approved September 23, 1996). Sec. 1303( b) of that Act further required the Presi-dent to report to Congress within 180 days "his recommendations on ways to make the laws of the United States more effective in controlling and preventing the proliferation of weapons of mass destruction and missiles. The report shall identify all sources of Government funds used for such nonproliferation activities."

    Section 2( b)( 12) (12 U. S. C. 635( b)( 12)) requires the President to notify the Export- Import Bank if he determines "that the military or Government of the Russian Federation has transferred or delivered to the People's Republic of China an SS- N- 22 missile system and that the transfer or delivery represents a significant and imminent threat to the security of the United States... Upon receipt of the notice and if so directed by the President of the United States, the Board of Directors of the Bank shall not give approval to guarantee, insure, extend credit, or participate in the extension of credit in connection with the purchase of any good or service by the military or Government of the Russian Federation."

    Sec. 12 of the Export- Import Bank Reauthorization Act of 1997 (pending signing into law; cleared for White House on November 9, 1997) added paragraph 12.

    Foreign Assistance Act of 1961 (LFR '96, vol. 1- A, p. 13)

    The Foreign Assistance Act of 1961 (FAA) authorizes U. S. Government foreign aid programs including development assistance, economic support funding, numerous multilateral programs, housing and other credit guaranty programs, Overseas Private Investment Corporation, international organizations, debt- for- nature ex-changes, international narcotics control, international disaster assistance, development funding for Africa, assis-tance to states of the former Soviet Union, military assistance, international military education and training, peacekeeping, antiterrorism, and various regional enterprise funds.

    Section 620A (22 U. S. C. 2371), prohibits any foreign assistance, food assistance, Peace Corps funding, and support under the Export- Import Bank Act of 1945 from being made available to countries that the Secretary of State has certified as supporters of international terrorism (the 6( j) list). The restriction remains in place until such time that the Secretary certifies that there has been a fundamental change in the leadership and policies of the targeted country, the country is no longer supporting international terrorists, and that the targeted govern-ment has assured no such support will resume.

    The President may waive the prohibition on the basis of U. S. national security, and some assistance may be restored to address humanitarian concerns. A waiver requires notification and justification being provided to Congress 15 days before assistance is given.

    Section 620A was added by sec. 303 of the International security Assistance and Arms Export Control Act of 1976 (Public Law 94- 329; approved June 30, 1976). The section has been amended and restated since then by sec. 503( a) of the International Security Assistance and Development Cooperation Act of 1985 (Public Law 99- 83; approved August 8, 1985) and sec. 5 of the Anti- Terrorism and Arms Export Amendments Act of 1989 (Public Law 101- 222; approved December 12, 1989).

    Section 620E (22 U. S. C. 2375), related to U. S. assistance to Pakistan, was enacted in reaction to the threat posed by Soviet occupation of neighboring Afghanistan. Section 620E( d) authorizes the President to waive sanctions under section 101 of the AECA to provide assistance to Pakistan, if he determines it is in the U. S. national interest to do so.

    Subsection 620E( e) states that no military assistance shall be furnished and no military equipment or tech-nology shall be sold or transferred to Pakistan unless the President certifies to the Speaker of the House and the Chairman of the Senate Foreign Relations Committee that, for the fiscal year in which the assistance, sale or transfer would occur, Pakistan does not possess a nuclear explosive device and that proposed military assistance would significantly reduce the risk that Pakistan will possess a nuclear explosive device. This restriction does not apply to international narcotics control assistance, International Military Education and Training funds, funding for humanitarian and civic assistance projects, peacekeeping or other multilateral operations funds, or antiterrorism assistance.

    Enacted as Public Law 87- 195; approved September 4, 1961. Sec. 620E was added to the Foreign Assis-tance Act by sec. 736 of the International Security and Development Cooperation Act of 1981 (Public Law 97- 113; approved December 29, 1981. Sec. 620E( d) was amended in 1994 by the Nuclear Proliferation Prevention Act of 1994 to reflect the repeal of secs. 669 and 670 and the enactment of sec. 101 of the Arms Export Control Act. Sec. 620E( e), the "Pressler amendment," was added by sec. 902 of the International Security and Develop-ment Cooperation Act of 1985 (Public Law 99- 83; approved August 8, 1985). Sec. 559( a)( 1)( D) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1996 (Public Law 104- 107; approved February 12, 1996), amended the section to exclude certain assistance programs from the ban, as noted in the last sentence, above. The same Act made several changes to restrict only "military assistance," formerly the section had referred to assistance generally. The same Act amended the section to authorize the President to: release Pakistan from paying storage costs of items purchased before October 1, 1990, but not delivered (pre-sumably F- 16s); release other items serviced in the United States; and continued the applicability of other laws pertaining to ballistic missile sanctions.

    Section 620G (22 U. S. C. 2377) requires the President to withhold all foreign assistance to the government of any country that provides assistance to the government of a country listed as a terrorist state by the Secretary of State pursuant to sec. 620A of this Act (22 U. S. C. 2370).

    The President may waive the imposition of the sanction if he determines that furnishing such assistance is important to the U. S. national interest and notifies the appropriate congressional committees of his intent 15 days prior to lifting the ban. His notification shall include the determination, a detailed explanation of the assistance to be provided with its estimated dollar amount, and an explanation of how such assistance furthers U. S. national interests.

    Section 620G was added by sec. 325 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104- 132; approved April 24, 1996).

    Section 620H (22 U. S. C. 2378) requires the President to withhold all foreign assistance to the government of any country that provides lethal military equipment to a country listed by the Secretary of State as a supporter of international terrorism (the sec. 6( j) list, maintained pursuant to sec. 6( j) of the Export Administration Act). The prohibition remains in place until one year after such transfers or transactions cease. The section is not retroactive, but includes all contracts entered into after the date of enactment (April 24, 1996).

    The President may waive the imposition of the sanction if he determines that furnishing such assistance is important to the U. S. national interest and notifies the appropriate congressional committees of his intent 15 days prior to lifting the ban. His notification shall include the determination, a detailed explanation of the assistance to be provided with its estimated dollar amount, and an explanation of how such assistance furthers U. S. national interests.

    Section 620H was added by sec. 326 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104- 132; approved April 14, 1996).

    International Emergency Economic Powers Act (50 U. S. C. 1701 et seq.) (LFR '96, vol. III, p. 1144)

    Section 203 (50 U. S. C. 1701 note) authorizes the President to deal with unusual and extraordinary threats with respect to a declared national emergency. He may investigate, regulate, or prohibit foreign exchange transactions, credit transfers or payments, currency or security transfers, and may take specified actions relating to property in which a foreign country or person has interest.

    Enacted as title II of Public Law 95- 223; approved December 28, 1977, to update and continue authority carried earlier in the Trading With the Enemy Act (Public Law 65- 92; approved October 6, 1917). It has been amended from time to time to update the list of what cannot be restricted, mostly to keep up with changes in technology (for example, the law allows the free flow of informational materials, most recently amended to include CD ROMs).

    Iran- Iraq Arms Nonproliferation Act of 1992 (50 U. S. C. 1701 note) (LFR '96, vol. II, p. 1389)

    Section 1604 requires the President to impose sanctions against any person whom he has determined to be engaged in transferring goods or technology so as to contribute knowingly and materially to the efforts by Iran or Iraq to acquire chemical, biological, nuclear, or destabilizing numbers and types of advanced conventional weapons. Section 1605 similarly addresses activities of foreign governments.

    In both cases, mandatory sanctions prohibit, for a period of two years, the U. S. Government from entering into procurement agreements with, or issuing licenses for exporting to or for the sanctioned person or country. Where a foreign country is found to be in violation of the law, the President must suspend U. S. assistance; instruct U. S. Executive Directors in the international financial institutions to oppose multilateral development bank assistance; suspend codevelopment and coproduction projects the U. S. Government might have with the offending country for one year; suspend, also for one year, most technical exchange agreements involving mili-tary and dual- use technology; and prohibit the exportation of U. S. Munitions List items for one year. In the case of foreign countries targeted for sanctions under this Act, the President may, at his discretion, use authority granted him under the International Emergency Economic Powers Act to further prohibit transactions with the country.

    The President may waive the mandatory sanctions against persons or foreign country with 15 days notice to congressional committees that exercising such a waiver is essential to U. S. national interests.

    Section 1603 makes sanctions in Section 586G( a)( 1) through (4) of the Iran Sanctions Act of 1990 also fully applicable against Iraq (see below).

    Enacted as title XVI of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102- 484; approved October 23, 1992). Sec. 1408( a) of Public Law 104- 106 (110 Stat. 494) amended sections 1604 and 1605 to apply not just to conventional weapons but also to chemical, biological, or nuclear weapons.

    Iraq Sanctions Act of 1990 (LFR '96, vol. I- B, p. 26)

    This Act reaffirmed the United States' commitment to sanctions leveled by the United Nations after Iraq invaded Kuwait in August 1990. The findings, laid out in Section 586F, cite Iraq's violation of international law relating to chemical and biological warfare, Iraq's use of chemical weapons against Iran and its own Kurdish population, efforts to expand its chemical weapons capabilities, evidence of biological weapons development, and its efforts to establish a nuclear arsenal.

    The Act, Section 586C, continues sanctions imposed pursuant to four executive orders issued at the outset of Iraq's invasion of Kuwait. Sanctions include foreign assistance, trade, economic restrictions, and the freezing of Iraqi assets under U. S. jurisdiction. The President may alter or terminate the sanctions issued in his executive orders only with prior 15- day notification to Congress.

    Section 586D prohibits foreign assistance, Overseas Private Investment Corporation (OPIC) funding, and assistance or sales under the AECA to countries found to be not in compliance with United Nations Security Council sanctions against Iraq. The President may waive these sanctions if he determines and certifies to Con-gress that assistance is in U. S. national interest, that assistance will benefit the targeted country's needy, or such assistance will be in the form of humanitarian assistance for foreign nationals fleeing Iraq and Kuwait.

    Section 586G prohibits the United States from engaging in the following activities relating to Iraq: (1) U. S. foreign military sales under the AECA; (2) commercial arms sales licensing of items on the U. S. Munitions List; (3) exports of control list goods and technology, as defined by secs. 4( b) and 5( c)( 1) of the Export Administra-tion Act; (4) issuance of licenses or other authorizations relating to nuclear equipment, materials, and technol-ogy; (5) international financial institutions support; (6) Export- Import Bank funding; (7) Commodity Credit Corporation funding; and (8) foreign assistance other than emergency medical or humanitarian funding.

    Pursuant to Section 586H, the President may waive the application of sec. 586G sanctions if he certifies to Congress that the Government of Iraq has demonstrated improved respect for human rights, does not support international terrorists, and "is not acquiring, developing, or manufacturing (i) ballistic missiles, (ii) chemical, biological, or nuclear weapons, or (iii) components for such weapons; has forsworn the first use of such weap-ons; and is taking substantial and verifiable steps to destroy or otherwise dispose of any such missiles and weapons its possesses..." The President must further certify that Iraq is meeting its obligations under several international agreements. Finally, the President must certify that it is in the national interest of the United States to make such a waiver and resume any or all of these economic supports. The section also authorizes the President to waive the restrictions in response to a fundamental change in Iraq's leadership, provided the new government makes credible assurances that it meets the above criteria.

    Section 586I prohibits the export licensing of supercomputers to any government (or its officials) that the President finds to be assisting Iraq in improving its rocket technology, or chemical, biological, or nuclear weap-ons capability. While the section includes no waiver authority, it is triggered by the President making a determi-nation and so its implementation rests with the executive branch.

    Enacted as secs. 586- 586J of the Foreign Operations, Export Financing, and Related Programs Appropria-tions Act, 1991 (Public Law 101- 513; approved November 5, 1990). It has not been amended.

    National Emergencies Act (LFR '96, vol. III, p. 1150)

    Title II (50 U. S. C. 1621, 1622) authorizes the President to declare, administer, and terminate national emer-gencies. Such a condition is required for the President to exercise his authority under the International Emer-gency Economic Powers Act.

    Public Law 94- 412; approved September 14, 1976. No substantive amendments relevant to proliferation issues.

    National Security Act of 1947 (new amendment)

    Sections 901 through 904 (50 U. S. C. 441, 441a- 441c) allows the President to stay the imposition of eco-nomic, cultural, diplomatic or other sanctions when he determines and reports to Congress that to proceed without delay would seriously risk the compromise of an ongoing criminal investigation or intelligence source or method.

    Sections 901 through 904 were added by sec. 303 of the Intelligence Authorization Act for Fiscal Year 1996 (Public Law 104- 93; approved January 6, 1996.

    Nuclear Non- Proliferation Act of 1978 (LFR '96, vol. II, p. 1417)

    The Nuclear Non- Proliferation Act of 1978 states U. S. policy for actively pursuing more effective interna-tional controls over the transfer and use of nuclear materials, equipment, and technology for peaceful purposes in order to prevent proliferation. The policy statement includes the establishment of common international sanctions. The Act promotes the establishment of a framework for international cooperation for developing peaceful uses of nuclear energy, authorizes the U. S. Government to license exports of nuclear fuel and reactors to countries that adhere to nuclear non- proliferation policies, provides incentives for countries to joint interna-tional cooperative efforts in nuclear non- proliferation, and authorizes relevant export controls. The Act requires the Nuclear Regulatory Commission to publish regulations establishing procedures for granting, suspending, revoking or amending nuclear export licenses. The Act also requires the Department of Commerce to issue regulations relating to all export items that could be of significance for nuclear explosive purposes.

    Section 304( b) (42 U. S. C. 2155a) requires the Nuclear Regulatory Commission to publish regulations es-tablishing the procedures for granting, suspending, revoking or amending nuclear export licenses. Section 309 (42 U. S. C. 2139a) similarly requires the Department of Commerce to issue regulations relating to all export items that could be of significance for nuclear explosive purposes. Section 402 (42 U. S. C. 2153a) provides that, unless otherwise stated in a cooperation agreement, no source or special nuclear material exported from the United States may be enriched after exportation unless the United States approves the enrichment. The section prohibits the export of nuclear material for the purpose of enrich-ment or reactor fueling if the recipient country is party to a cooperation agreement with the United States amended or concluded after 1978, unless the agreement specifically allows for such transfers. Finally, the section prohibits export of any major critical component of any uranium enrichment, nuclear fuel reprocessing, or heavy water production facility, unless a cooperation agreement specifically designates these items as exportable.

    The Nuclear Non- Proliferation Act of 1978 was enacted as Public Law 95- 242; approved March 10, 1978. Secs. 304( b) and 402 have not been amended. Minor changes have been incorporated into sec. 309, relating to a requirement of prior consultation.

    Nuclear Proliferation Prevention Act of 1994 (LFR '96, vol. II, p. 1356)

    The Nuclear Proliferation Prevention Act of 1994 was enacted to update current law to reflect growing concerns about nuclear proliferation.

    Section 821 (22 U. S. C. 3201 note) requires U. S. Government procurement sanctions against any U. S. person or foreign person if the President determines that that person has materially, and with requisite knowl-edge, contributed, through export of goods or technology, to efforts to acquire unsafeguarded special nuclear material, or to use, develop, produce, stockpile, or otherwise acquire a nuclear explosive device. Terms of the sanctions are that the U. S. Government may not, for 12 months, procure from or enter into procurement contracts with the sanctioned individual. Sanctions may be terminated after 12 months if the President determines and certifies to Congress that the individual has stopped whatever activities that brought on the sanctions, and that the individual will not engage in such activities in the future. Otherwise, to waive the sanctions at the end of 12 months, the President must determine and certify to Congress, 20 days in advance, that continuing the sanctions would have a serious adverse effect on vital U. S. interests.

    The President is not required to apply or maintain sanctions if the articles or services provided are essential to U. S. national security; if the provider is a sole source; if the articles or services are essential to national security under defense cooperative agreements; if the articles are essential spare parts, essential component parts, routine servicing or maintenance, or information and technology essential to U. S. production. Sanctions may also not be required if the individual relied on an advisory opinion of the State Department stating that a particular activity was not deemed to be sanctionable.

    In the case of a foreign person, the President is required to enter into consultation with the foreign govern-ment with primary jurisdiction over that person, and thus may delay the imposition of sanction for up to 90 days. Sanctions may be further averted if the President determines and certifies that the foreign government has taken steps to end the foreign person's activities.

    Section 823 (22 U. S. C. 3201 note) requires the Secretary of the Treasury to instruct U. S. executive directors of international financial institutions to use voice and vote to oppose promotion of the acquisition of unsafeguarded special nuclear material or the development, stockpiling, or use of nuclear explosive devices by any non- nuclear-weapon state.

    Section 824 (22 U. S. C. 3201 note) prohibits financial institutions and persons involved with financial insti tutions from assisting nuclear proliferation through the provision of financing. The section requires that when the President determines that a U. S. person or foreign person has engaged in a prohibited activity, he shall impose the following sanctions: (1) ban on dealing in U. S. Government debt instruments; (2) ban on serving as a depositary for U. S. Government funds; (3) ban on pursuing, directly or indirectly, new commerce in the United States; and (4) ban on conducting business from a new location in the United States.

    The President is required to consult with any foreign government that serves as primary jurisdiction for any foreign person sanctioned under this section. Sanctions may be delayed for 90 days while consultation with a foreign government is underway, and may be further averted if the foreign government takes steps to stop the prohibited activity.

    Sanctions are in place for not less than 12 months, and are terminated then only if the President determines and certifies to Congress that the person's engagement in prohibited activity has ceased and will not resume. The President may waive the continued use of sanctions when he determines and certifies to Congress that continuing the restrictions would have a serious adverse effect on the safety and soundness of the domestic or international financial system or the domestic or international payments system.

    The Nuclear Proliferation Prevention Act of 1994 was enacted as title VIII of the Foreign Relations Autho-rization Act, Fiscal Years 1994 and 1995 (Public Law 103- 236; approved April 30, 1994). Sec. 157( b) of Public Law 104- 164 (approved July 21, 1996) made changes to sec. 824, including striking out a requirement that any Presidential determination pursuant to subsec. (c) be reviewed by the courts.



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