Order Code 98-116 F
CRS Report for Congress
Received through the CRS Web
Nuclear, Biological, Chemical, and Missile
Proliferation Sanctions: Selected Current Law
Updated January 17, 2001
Dianne E. Rennack
Specialist in Foreign Policy Legislation
Foreign Affairs and National Defense Division
Congressional Research Service ˜ The Library of Congress
Nuclear, Biological, Chemical, and Missile Proliferation
Sanctions: Selected Current Law
Summary
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, it was not until 1990
that Congress enacted explicit guidelines for trade sanctions related to missile
proliferation. In that year 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.
This report offers a 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. For each provision,
information is included on what triggers the imposition of sanctions, their duration,
what authority the President has to delay or abstain from imposing sanctions, and
what authority the President has to waive the imposition of sanctions.
Contents
Selected Current Law: Sanctions Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. (relating to criminal procedure) . . . . . . . . . . . . . . . . . . . . . . . . . 2
Agreement for Nuclear Cooperation Between the United States
and China, Joint Resolution Approving the Proposed Agreement
for Nuclear Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Arms Export Control Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Atomic Energy Act of 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Chemical and Biological Weapons Control and Warfare Elimination Act
of 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Chemical Weapons Convention Implementation Act of 1998 . . . . . . . . . . 13
Export Administration Act of 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Export-Import Bank Act of 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Foreign Assistance Act of 1961 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
International Emergency Economic Powers Act . . . . . . . . . . . . . . . . . . . . 24
Iran-Iraq Arms Nonproliferation Act of 1992 . . . . . . . . . . . . . . . . . . . . . . 25
Iran Nonproliferation Act of 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Iraq Sanctions Act of 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
National Emergencies Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
North Korea Threat Reduction Act of 1999 . . . . . . . . . . . . . . . . . . . . . . . 28
Nuclear Non-Proliferation Act of 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Nuclear Proliferation Prevention Act of 1994 . . . . . . . . . . . . . . . . . . . . . . 29
Nuclear, Biological, Chemical, and Missile
Proliferation Sanctions: Selected Current Law
The use of sanctions specifically to stem weapons proliferation is a relatively new
development in U.S. foreign policy.1 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,2 it was not until 1990
that Congress enacted explicit guidelines for trade sanctions related to missile
proliferation. In that year 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 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.
This report offers 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.3 For each
provision, information is included on what triggers the imposition of sanctions, their
duration, what authority the President has to delay or abstain from imposing
sanctions, and what authority the President has to waive the imposition of sanctions.
1 For a more general discussion on the use of sanctions in foreign policy, see
Economic
Sanctions to Achieve U.S. Foreign Policy Goals: Discussion and Guide to Current Law,
Dianne E. Rennack and Robert D. Shuey, CRS Report 97-949; and
Economic Sanctions:
Legislation in the 106th Congress, Dianne E. Rennack, CRS Report RL30384.
2 The International Atomic Energy Act 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.
3 The list is arranged alphabetically, with references to U.S. Code and
Legislation on Foreign
Relations where applicable. Legislative history of pertinent amendments is also given, in
italics.
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Selected Current Law: Sanctions Provisions
18 U.S.C. (relating to criminal procedure)4
18 U.S.C. 229-229F (part I, chapter 11) makes it generally unlawful for a
person knowingly “(1) to develop, produce, otherwise acquire, transfer directly or
indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any
chemical weapon; or (2) to assist, induce, in any way, any person to violate paragraph
(1), or to attempt or conspire to violate paragraph (1).” The sections establish
criminal and civil penalties, and terms of criminal forfeiture.
Sec. 201 of the Chemical Weapons Convention Implementation Act of 1998
(Division I of P.L. 105-277; approved October 21, 1998) enacted these sections to
bring the criminal and civil penalties section of United States Code into conformity
with the requirements of the Chemical Weapons Convention.
18 U.S.C. 2332a makes it an offense to use, threaten to use, attempt or conspire
to use certain weapons of mass destruction (WMD) against a national of the United
States or within the United States. Weapons of mass destruction include a range of
destructive devices, defined in 18 U.S.C. 921, and “any biological agent, toxin, or
vector.” One found to have used a WMD for such use “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.”
Sec. 60023(a) of P.L. 103-322 (108 Stat. 1980) added sec. 2332a. The section
was substantially reworked by the Antiterrorism and Effective Death Penalty Act of
1996 (P.L. 104-132; approved April 24, 1996). The Chemical Weapons Convention
Implementation Act of 1998 (Division I of P.L. 105-277; approved October 21,
1998) exempted chemical weapons from application of this section of 18 U.S.C., and
in its place enacted chapter 11B of part I of 18 U.S.C. to establish criminal and civil
penalties in conformity with the Chemical Weapons Convention.
Agreement for Nuclear Cooperation Between the United States
and China, Joint Resolution Approving the Proposed Agreement
for Nuclear Cooperation5
The agreement requires Presidential certification that China is not violating
section 129 of the Atomic Energy Act of 1954, which places restrictions on exports
to nations that assist or encourage non-nuclear weapon states to acquire nuclear
weapons.
4
Legislation on Foreign Relations Through 1996, vol. II, page 707.
5 P.L. 99-183; approved December 16, 1985; 99 Stat. 1174.
Legislation on Foreign
Relations Through 1996, vol. II, p. 1522. On January 12, 1998, the President made the
certification required by sec. (b)(1) of this law. The determination also certified that China
had met nuclear weapons nonproliferation standards stated in section 902(a)(6)(B)(i) of P.L.
101-246 (22 U.S.C. 2151; often referred to part of the “Tiananmen Square sanctions” in that
Act). See Presidential Determination No. 98-10 (63 F.R. 3447; January 23, 1998).
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No amendments.
Arms Export Control Act6
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
recipients for military exports, sales, leases, loans, and financing.
Section 3(f) (Eligibility; 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 of 1994 (title VIII of the Foreign Relations Authorization Act, Fiscal Years 1994
and 1995; P.L. 103-236; approved April 30, 1994).
Section 38 (Control of Arms Exports and Imports; 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) gives the Secretary of State the authority
to assess civil penalties and initiate civil actions against violators; any civil penalty for
violations under this section is capped at $500,000. Section 38(j) authorizes the
President to exempt a foreign country from licensing requirements under the AECA
when that country commits to a binding bilateral agreement with the United States to
establish export controls on a par with export controls in U.S. law and regulations.
Section 38 was added by sec. 212(a)(1) of the International Security Assistance
and Arms Export Control Act of 1976 (P.L. 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
Development Cooperation Act of 1985 (P.L. 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 P.L. 99-83, in 1985, however, added the language that caps civil penalties, and
sec. 1303 of the Arms Control, Nonproliferation and Security Assistance Act of 1999
(division B of the Nance/Donovan Foreign Relations Authorization Act, FY 2000-
2001; H.R. 3427, enacted by reference in P.L. 106-113), gave civil action authority
6 P.L. 90-629; approved October 22, 1968; 22 U.S.C. 2751 and following.
Legislation on
Foreign Relations Through 1999, vol. I-A, p. 335.
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to the Secretary of State. Previously the section referred to such authority in the
Export Administration Act, which resides with the Secretary of Commerce and was
capped in that Act at $100,000. Sec. 102(a) of the Security Assistance Act of 2000
(P.L. 106-280; approved October 6, 2000) added subsec. (j).
Section 40 (Transactions With Countries Supporting Acts of International
Terrorism; 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.”7
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.
Those found to be in violation of the section face criminal prosecution with
penalties of as much as a $1 million fine and imprisonment of not more than ten years.
Civil penalties for violations under this section, similar to those in sec. 38, are capped
at $500,000; the Secretary of State has the authority to assess civil penalties and
initiate civil actions against violators.
Section 40 was added by the Omnibus Diplomatic Security and Antiterrorism
Act of 1986 (P.L. 99-399; approved August 27, 1986), and later amended and
restated by the Anti-Terrorism and Arms Export Amendments Act of 1989 (P.L. 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; P.L.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 (P.L. 102-138; approved October 28,
1991) made technical changes to the guidelines for Congress’s passage of a joint
resolution relating to the section. Sec. 1303 of the Arms Control, Nonproliferation
and Security Assistance Act of 1999 (division B of the Nance/Donovan Foreign
7 See also sec. 549 of the Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 2000.
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Relations Authorization Act, FY 2000-2001; H.R. 3427, enacted by reference in P.L.
106-113), gave civil action authority to the Secretary of State. Previously the section
referred to such authority in the Export Administration Act, which resides with the
Secretary of Commerce and was capped in that Act at $100,000.
Sections 72 and 73 (Denial of the Transfer of Missile Equipment or
Technology by U.S. Persons; 22 U.S.C. 2797a; Transfers of Missile Equipment
or Technology by Foreign Persons; 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 Control
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 two years, and include denial
of U.S. government contracts, denial of export licenses for items on the U.S.
Munitions 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 with jurisdictional authority 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 obtained by misrepresentation or fraud,
except when the activity in question is conducted by an entity
subordinate to a government of an independent state of the former
Soviet Union, and when the President determines that that
government has knowingly transferred missiles or missile technology
in a manner inconsistent with MTCR guidelines;
! if the export, transfer, or trade is made to an end-user in a country
that is an MTCR 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
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—
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.
Sanctions are not imposed, or those imposed may be lifted, against individuals
when the President certifies that a foreign government, which is an MTCR adherent,
has adequately attended to the violation through some judicial process or enforcement
action.
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
(P.L. 101-510; approved November 5, 1990) added sections 71-74. In section 72,
sec. 734(a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995
(P.L. 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 (P.L.102-138; approved October 28, 1991), added assisting another
country in acquiring missiles to the list of sanctionable acts; sec. 1136 of the Arms
Control and Nonproliferation Act of 1999 (title XI of the Nance/Donovan Foreign
Relations Authorization Act, Fiscal Years 2000 and 2001; H.R. 3427, enacted by
reference in P.L. 106-113; approved November 29, 1999) added potential limitation
on independent states of the former Soviet Union and the President’s certification
pertaining to judicial attention by MTCR adherents. 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 administering the policy. This language, however, was struck out to
conform with agency reorganization, particularly that of ACDA being incorporated
into the State Department, by sec. 1136 of the Arms Control and Nonproliferation
Act of 1999. Sec. 1408 of the National Defense Authorization Act for Fiscal Year
1996 (P.L. 104-106; approved February 10, 1996) made technical changes to
reporting requirements relating to issuing a waiver.
Section 73B (Authority Relating to MTCR Adherents; 22 U.S.C. 2797b-2)
authorizes the President to impose sanctions against a foreign person, notwithstanding
that person’s operating in compliance of the laws of an MTCR adherent or that
person’s exporting to an end-user in a country that is an MTCR adherent, if the
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country of jurisdiction over that foreign person is a country (1) that has entered into
an understanding with the United States after January 1, 2000, (2) for which the
United States retains the right to impose sanctions against those in the country’s
jurisdiction for exporting of controlled items that contribute to the acquisition, design,
development, or production of missiles in a country that is not an MTCR adherent.
Sec. 1137 of the Arms Control and Nonproliferation Act of 1999 (title XI of the
Nance/Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001;
H.R. 3427, enacted by reference in P.L.. 106-113; approved November 29, 1999)
added sec. 73B, and made supporting amendments in sec. 73 relating to conditions
of applicability, and sec. 74, defining “international understanding.”
Section 74 (Definitions; 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.”8 Within that definition, the
term “international understanding” has been further defined to limit its applicability
or to make the President’s authority to impose sanctions broader. 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 (P.L. 102-138; approved October 28, 1991) amended the definition of
“person” to target China—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”). Sec.
1136(a) of the Arms Control and Nonproliferation Act of 1999 (title XI of the
Nance/Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001;
H.R. 3427, enacted by reference in P.L. 106-113; approved November 29, 1999)
added the definition of “international understanding,” a term used in the course of
defining “MTCR adherent.”
Section 81 ([CBW] Sanctions Against Foreign Persons; 22 U.S.C. 2798)
requires imposition of sanctions to deny government procurement, contracts with the
U.S. government, and imports from foreign persons who knowingly and materially
8 See also sec. 73A of the AECA (22 U.S.C. 2797b-1), which requires the President to notify
Congress when U.S. action results in any country becoming an MTCR adherent. The sections
also requires an independent assessment to be submitted to Congress by the Director of
Central Intelligence covering the newly designated MTCR adherent and several proliferation
issues.
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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. Exceptions 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 P.L. 102-182; approved December
4, 1991.)9
Section 101 (Nuclear Enrichment Transfers; 22 U.S.C. 2799aa) (similar to
former 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
9 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 1992 (P.L. 102-138; approved October 28, 1991) enacted the first. Later in the same
session, title III of P.L. 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.
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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; P.L. 103-236;
approved April 30, 1994) added secs. 101 and 102. Similar language, however,
previously had been in the Foreign Assistance Act of 1961, as secs. 669 and 670.
Sec. 669 was added by sec. 305 of the International Security Assistance and Arms
Export Control Act of 1976 (P.L. 94-329; approved June 30, 1976). The section was
amended and restated by sec. 12 of the International Security Assistance Act of 1977
(P.L. 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 (P.L. 95-384; approved September 26, 1978). Sec. 737(b)
of the International Security and Development Cooperation Act of 1981 (P.L. 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
(P.L. 99-83; approved August 8, 1985), made further changes to sec. 670 before
both sections were repealed in 1994 and similar language was incorporated into the
AECA.
Section 102 (Nuclear Reprocessing Transfers, Illegal Exports for Nuclear
Explosive Devices, Transfers of Nuclear Explosive Devices, and Nuclear
Detonations; 22 U.S.C. 2799aa-1) (similar to former 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
that 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
negate a certification by enacting a joint resolution stating its disapproval.
The section further prohibits assistance (except humanitarian or food assistance),
defense sales, export licenses for U.S. Munitions List items, other export licenses
subject to foreign policy controls (except medicines or medical equipment), and
various credits and loans (except Department of Agriculture credits and support to
procure food and agriculture commodities) to any country that the President has
determined (A) transfers a nuclear explosive device to a non-nuclear-weapon state;
(B) is a non-nuclear-weapon state and either (i) receives a nuclear explosive device;
or (ii) detonates an nuclear explosive device; (C) transfers to a non-nuclear-weapon
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state any design information or component that is determined by the President to be
important to, and known by the transferring country to be intended by the recipient
state for use in, the development or manufacture of any nuclear explosive devices; or
(D) is a non-nuclear-weapon state and seeks and receives any design information or
component that is determined by the President to be important to, and intended by the
recipient state for use in, the development or manufacture of any nuclear explosive
device.
In any of these latter four instances, sanctions are mandatory once the President
has determined that an event has occurred. If the event has to do with transferring a
nuclear explosive device to a non-nuclear-weapon state, or a non-nuclear-weapon
state receiving or detonating a nuclear explosive device, the President may delay the
imposition of sanctions for 30 days (of congressional continuous session) if he
determines that the immediate imposition of sanctions “would be detrimental to the
national security of the United States,” and so certifies to the Speaker of the House
and the Chairman of the Senate Committee on Foreign Relations.
If the President makes such a determination, he may further waive the imposition
of sanctions if the Congress, within those 30 days after the first determination, takes
up a joint resolution under expedited procedure,10 that states:
That the Congress having received on ________ a certification by the President
under section 102(b)(4) of the Arms Export Control Act with respect to ________,
the Congress hereby authorizes the President to exercise the waiver authority
contained in section 102(b)(5) of that Act.
With passage of a joint resolution authorizing him to exercise further waiver
authority, the President may waive any sanction which would otherwise be required
in instances involving the transferring of a nuclear explosive device to a non-nuclear-
weapon state, or a non-nuclear-weapon state receiving or detonating a nuclear
explosive device. To exercise this waiver, the President determines and certifies in
writing to the Speaker of the House and the Senate Committee on Foreign Relations
“that the imposition of such sanction would be seriously prejudicial to the
achievement of United State nonproliferation objectives or otherwise jeopardize the
common defense and security.”
Alternatively, if Congress does not take up a relevant joint resolution within the
30 days, the sanctions enter into effect. Section 102 does not state the means for
otherwise suspending or terminating the sanctions.11
10 Sec. 601(b) of the International Security Assistance and Arms Export Control Act of 1976,
P.L. 94-329. See
Legislation on Foreign Relations Through 1999, volume I-A, page 619.
11 Sanctions under sec. 102 were applied to India and Pakistan after each country tested
nuclear explosive devices in May 1998. Congress enacted three laws after the sanctions were
imposed to ease their application or authorize the President to waive their application. See
the Agriculture Export Relief Act of 1998 (P.L. 105-194; approved July 14, 1998), India-
Pakistan Relief Act of 1998 (title IX of P.L. 105-277; approved October 21, 1998), and the
Department of Defense Appropriations Act, 2000, title IX (P.L. 106-79; approved October
(continued...)
CRS-11
For legislative history of the origin of and early changes to this section, see
discussion following sec. 101, above. Sec. 2(a) of the Agriculture Export Relief Act
of 1998 (P.L. 105-194; approved July 14, 1998) broadened the kinds of exchanges
that are exempt from the application of sanctions to include medicine, medical
equipment, and Department of Agriculture financing.
Atomic Energy Act of 195412
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 (Conduct Resulting in Termination of Nuclear Exports; 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 explosive 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. nonproliferation 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.
Sec. 307 of the Nuclear Non-Proliferation Act of 1978 (P.L. 95-242; approved
March 10, 1978) added sec. 129.
11 (...continued)
25, 1999).
12 P.L. 83-703, approved August 30, 1954, 42 U.S.C. 2011 and following.
Legislation on
Foreign Relations Through 1996, vol. II, p. 1440.
CRS-12
Chemical and Biological Weapons Control
and Warfare Elimination Act of 199113
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 P.L. 102-182 (a law dealing with trade issues
otherwise unrelated to nonproliferation). No amendments have been enacted.14
Section 307 (Sanctions Against Use of Chemical or Biological Weapons; 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 government 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 government: 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.
13 P.L. 102-182; approved December 4, 1991; 22 U.S.C. 5601-5606.
Legislation on Foreign
Relations Through 1996, vol. II, p. 1394.
14 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 1992 (P.L. 102-138; approved October 28, 1991) enacted the first. Later in the
same session, title III of P.L. 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.
CRS-13
Chemical Weapons Convention Implementation Act of 199815
The Chemical Weapons Convention Implementation Act of 1998 implements the
Chemical Weapons Convention, which was originally signed on January 13, 1993, and
to which the United States became a party on April 29, 1997.16 The Convention bans
the development, production, stockpiling, and use of chemical weapons, requires the
destruction of existing weapons and related materials, establishes an international
verification regime, and requires export controls and punitive measures to be leveled
for noncompliance.
Section 103 (Civil Liability of the United States; 22 U.S.C. 6713) requires
a wide range of sanctions to be imposed, for a period of not less than ten years, on an
individual who is a member of, or affiliated with, the Organization for the Prohibition
of Chemical Weapons “whose actions or omissions the United States has been held
liable for a tort or taking...” or a foreign company or an individual affiliated with that
company, “which knowingly assisted, encouraged, or induced, in any way, a foreign
person” affiliated with the Organization “to publish, divulge, disclose, or make known
in any manner or to any extent not authorized by the Convention any United States
confidential business information” including:
! no arms export transactions – sales of items on U.S. Munitions List,
transactions under Arms Export Control Act; no licenses for goods
or services covered by foreign policy controls under the Export
Administration Act of 1979;
! U.S. opposition to support from international financial institutions;
! no U.S. Export-Import Bank transactions;
! prohibition on U.S. private banks engaging with sanctions person;
! assets in United States to be frozen by Presidential action; and
! no rights to land aircraft in the United States (other than in cases of
emergency).
The Secretary of State is further required to deny a visa to any individual affiliated
with the Organization who divulges any confidential U.S. business if that disclosure
results in financial loss or damages.
The section requires the President to impose similar sanctions on any foreign
government found by the President to have similarly divulged such information, with
the sanctions imposed for not less than five years. Foreign countries are further
subject to:
! no U.S. economic assistance (other than humanitarian assistance),
military assistance, foreign military financing, grant military education
and training, military credits, guarantees; and no export licensing for
commercial satellites.
15 Division I of P.L. 105-277; approved October 21, 1998; 112 Stat. 2681-856. See also 18
U.S.C. 229
et seq.
16 See S.Res. 75, 105th Congress, 1st Session.
CRS-14
Sanctions may be suspended if the sanctioned entity fully and completely
compensates the U.S. government to cover the liability. The President, alternatively,
may waive the sanctions if he determines and notifies Congress that U.S. national
security interests are served by such a waiver.
Export Administration Act of 197917
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 (National Security Controls; 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
political status or political stability, to cooperate with international agreements or
understandings, or to protect militarily critical technologies.
Section 6 (Foreign
Policy Controls; 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.18
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 (Multilateral Export Control Violations; 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),19 and that the violation results “in substantial enhancement of Soviet and
17 P.L. 96-72; approved September 29, 1979; 50 U.S.C. App. 2401.
Legislation on Foreign
Relations Through 1996, vol. III, p. 1022. Authority granted by the Export Administration
Act was continued to August 20, 2001, by the Export Administration Modification and
Clarification Act of 2000 (P.L. 106-508; approved November 13, 2000).
18 Section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) and sec. 40 of the
Arms Export Control Act (22 U.S.C. 2780) grant similar authority to the Secretary of State
to withhold assistance and programs governed by those two laws. See
Legislation on Foreign
Relations Through 1999, vol. I-A, pages 263, 404, respectively. See also sec. 40A of the
AECA (22 U.S.C. 2781), which denies defense articles and defense services to a foreign
country the President has determined is not fully cooperating with U.S. antiterrorism efforts;
Legislation on Foreign Relations Through 1999, vol. I-A, page 411.
19 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
(continued...)
CRS-15
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 President 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 five years.
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 two years, the President may modify terms of the
restrictions under certain conditions, and if he notifies Congress.
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;
P.L. 100-418; approved August 23, 1988) added sec. 11A. The section has not been
amended.
Section 11B (Missile Proliferation Control Violations; 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 proliferation controls. The section requires sanctions against any U.S. citizen
who 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 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 two 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 engaged 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
19 (...continued)
export control arrangement. The Wassenaar Arrangement for Export Controls for
Conventional Arms and Dual-Use Goods and Technologies (“Wassenaar Arrangement”)
became operational in 1996. On January 15, 1998, the Bureau of Export Administration of
the Department of Commerce issued an interim rule to implement the Wassenaar Arrangement
list of dual-use items and revisions to the Commerce Control List required by implementation
of the Wassenaar Arrangement. See 63 F.R. 2452.
CRS-16
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
two 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
referring to government activity relating to development of aircraft generally.
Sec. 1702(b) of the National Defense Authorization Act for Fiscal Year 1991
(P.L. 101-510; approved November 5, 1990) added sec. 11B. The section has not
been amended.
Section 11C (Chemical and Biological Weapons Proliferation Sanctions; 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 cooperation
agreements. Exceptions 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.
CRS-17
Sec. 505(a) of the Chemical and Biological Weapons Control and Warfare
Elimination Act of 1991 (title III of P.L. 102-182; approved December 4, 1991)
added sec. 11C. No amendments have been enacted.
Export-Import Bank Act of 194520
The Export-Import Bank Act of 1945 establishes the Export-Import Bank of the
United States and authorizes 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 P.L. 79-173; approved
July 31, 1945. Sec. 2(b)(1) has been amended and restated in 1972 (P.L. 92-126)
and again in 1974 (P.L. 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; P.L. 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.
20
Legislation on Foreign Relations Through 1996, vol. III, p. 952.
CRS-18
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 Secretary 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 P.L. 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; P.L. 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 (P.L. 104-201;
approved September 23, 1996). Sec. 1303(b) of that Act further required the
President 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 (P.L. 105-121;
approved November 26, 1997) added paragraph 12.
CRS-19
Foreign Assistance Act of 196121
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 exchanges,
international narcotics control, international disaster assistance, development funding
for Africa, assistance to states of the former Soviet Union, military assistance,
international military education and training, peacekeeping, antiterrorism, and various
regional enterprise funds.
Section 307(c) (Withholding of United States Proportionate Share for
Certain Programs of International Organizations; 22 U.S.C. 2227) requires that
foreign assistance the United States pays in to international organizations and
programs not be used for programs in certain countries. The section exempts the
International Atomic Energy Agency (IAEA) from this limitation, except for
particular projects the IAEA funds in Cuba. U.S. proportionate support to the IAEA,
in particular, is not available to any IAEA project relating to the Juragua Nuclear
Power Plant near Cienfugeos, Cuba, or the Pedro Pi Nuclear Research Center in
Cuba, unless Cuba (I) ratifies the Treaty on Non-Proliferation of Nuclear Weapons
or the Treaty of Tlatelelco and is in compliance with terms of the treaty; (II)
negotiates full-scope safeguards of the IAEA not later than two years after treaty
ratification; and (III) “incorporates internationally accepted nuclear safety
safeguards.”
Section 307 was added to the Foreign Assistance Act of 1961 by sec. 403 of the
International Security and Development Cooperation Act of 1985 (P.L. 99-83;
approved August 8, 1985). The countries to which it is applied has changed over
time; the countries for which program funding is currently restricted are Burma,
Iraq, North Korea, Syria, Libya, Iran, Cuba, and the Palestine Liberation
Organization (though application to the PLO has been waived under other
legislation in the course of peace negotiations), and communist countries listed
elsewhere in the Act. Limitations in subsec. (c) were originally added by sec.
431(a)(2) of the Foreign Relations Authorization Act, 1994 and 1995 (P.L. 103-236;
approved April 30, 1994). Language pertaining to nuclear developments in Cuba
was added by sec. 2809(a)(1) of the Foreign Relations Authorization Act, 1998 and
1999 (subdivision B of division G of P.L. 105-277; approved October 21, 1998).
21 P.L. 87-195; approved September 4, 1961; 22 U.S.C. 2151 and following.
Legislation on
Foreign Relations Through 1999, vol. 1-A, p. 15. See also chapter 9 in this Act, relating to
“Nonproliferation and Export Control Assistance,” added by sec. 301 of the Security
Assistance Act of 2000 (P.L. 106-280; approved October 6, 2000), codified at 22 U.S.C.
2349bb
et seq. This chapter does not impose sanctions; instead it makes assistance available
to friendly countries to ultimately “enhance the nonproliferation and export control
capabilities...by providing training and equipment to detect, deter, monitor, interdict, and
counter proliferation”.
CRS-20
Section 498A(b) (Criteria for Assistance to Governments of the
Independent States; 22 U.S.C. 2295a(b)) requires that the President not provide
assistance to independent states of the former Soviet Union if he determines that the
government of that state, among other things, (1) has failed to implement arms control
obligations signed by the former Soviet Union, or (2) has knowingly transferred to
another country: missiles or missile technology inconsistent with guidelines and
parameters of the Missile Technology Control Regime; “any material, equipment, or
technology that would contribute significantly to the ability of such country to
manufacture any weapon of mass destruction (including nuclear, chemical, and
biological weapons) if the President determines that the material, equipment, or
technology was to be used by such country in the manufacture of such weapon.” The
section further prohibits foreign assistance under chapter 11 of the Foreign Assistance
Act of 1961 to any country for which a determination has been issued pursuant to
sections 101 or 102 of the Arms Export Control Act or sections 306(a)(1) or 307 of
the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991.
The President may waive the prohibition – other than that based on other
proliferation legislation as cited in the section – on U.S. national security grounds, if
he determines that furnishing assistance “will foster respect for internationally
recognized human rights and the rule of law or the development of institutions of
democratic governance,” or to alleviate suffering resulting from a natural or man-
made disaster. Assistance may also be provided under the U.S. Information Agency's
(USIA) secondary school exchange program notwithstanding a country's ineligibility
(except in instances where ineligibility is based on nonproliferation violations). Any
waiver requires an immediate report to Congress of any determination or decision.
Section 498A was added by sec. 201 of the FREEDOM Support Act (P.L. 102-
511; approved October 24, 1992). See also discussion above, on sec. 73(b)(2) and
sec. 73B of the AECA, as amended. Those sections refer to sec. 498A(b)(3)(A) to
limit certain transactions with independent states of the former Soviet Union if the
transactions involve missiles or missile technology and are conducted in a manner
inconsistent with guidelines and parameters of the MTCR.
Section 620(y) (Prohibitions Against Furnishing Assistance; 22 U.S.C.
2370) restricts foreign assistance, or assistance pursuant to any other act, to any
country providing nuclear fuel, related assistance, and credits to Cuba. Assistance
denied the country in question equals the value of that country’s nuclear development
assistance, sales, or transfers to Cuba. The requirement to limit assistance is waived
if Cuba (A) ratifies the Treaty on Non-Proliferation of Nuclear Weapons or the Treaty
of Tlatelelco and is in compliance with terms of the treaty; (B) “has negotiated and
is in full compliance with full-scope safeguards of the International Atomic Energy
Agency” within two years of the treaty ratification; and (C) “incorporates and is in
compliance with internationally accepted nuclear safety safeguards.” The section also
requires an annual report on the matter to filed with Congress by the Secretary of
State.
Added by sec. 2810(a) of the Foreign Relations Authorization Act, Fiscal Years
1998 and 1999 (subdivision B of Division G of P.L. 105-277; approved October 21,
1998).
CRS-21
Section 620A (Prohibition on Assistance to Governments Supporting
International Terrorism; 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.22 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 government 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 (P.L. 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 (P.L. 99-83;
approved August 8, 1985) and sec. 5 of the Anti-Terrorism and Arms Export
Amendments Act of 1989 (P.L. 101-222; approved December 12, 1989).
Section 620E (Assistance to Pakistan; 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 technology 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 P.L. 87-195; approved September 4, 1961. Sec. 620E was added
to the Foreign Assistance Act by sec. 736 of the International Security and
Development Cooperation Act of 1981 (P.L. 97-113; approved December 29, 1981).
Sec. 620E(d) was amended in 1994 by the Nuclear Proliferation Prevention Act of
22 Section 40 of the Arms Export Control Act (22 U.S.C. 2780) and sec. 6(j) of the Export
Administration Act (50 U.S.C. app. 2404) grant similar authority to the Secretary of State to
withhold assistance and programs governed by those two laws. See also sec. 40A of the
AECA (22 U.S.C. 2781), which denies defense articles and defense services to a foreign
country the President has determined is not fully cooperating with U.S. antiterrorism efforts.
CRS-22
1994 (title VIII of the Foreign Relations Authorization Act, Fiscal Years 1994 and
1995; P.L. 103-236; approved April 30, 1994) to reflect the repeal of secs. 669 and
670 and the enactment of secs. 101 and 102 of the Arms Export Control Act. Sec.
620E(e), the “Pressler amendment,” was added by sec. 902 of the International
Security and Development Cooperation Act of 1985 (P.L. 99-83; approved August
8, 1985). Sec. 559(a)(1)(D) of the Foreign Operations, Export Financing, and
Related Programs Appropriations Act, 1996 (P.L. 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 (presumably F-16s); release other items serviced in the United States; and
continue the applicability of other laws pertaining to ballistic missile sanctions.
After India and Pakistan tested nuclear explosive devices in May 1998,
sanctions were imposed in accordance with requirements of sec. 102 of the Arms
Export Control Act (see above). Subsequently, Congress enacted three laws to grant
the President discretionary authority to waive those sanctions. The third, the
Department of Defense Appropriations Act, 2000 (P.L. 106-79; approved October
21, 1999; see title IX), authorized the President to waive section 620E(e) as well.
Section 620G (Prohibition on Assistance to Countries that Aid Terrorist
States; 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 (P.L. 104-132; approved April 24, 1996). See also sec. 40 of
the AECA (above).
Section 620H (Prohibition on Assistance to Countries that Provide Lethal
Military Equipment to Terrorist States; 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, either on the sec. 6(j) list under the Export Administration
Act, or the sec. 620A list pursuant to this 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 April 24, 1996 (the date of enactment of the
amendment).
CRS-23
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 (P.L. 104-132; approved April 14, 1996).
Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 200123
A Foreign Operations Appropriations Act is enacted annually, generally at the
start of a fiscal year, to make appropriations for various foreign assistance, military
assistance, and international financial institutions programs. Language in the current
fiscal year act usually pertains only to that fiscal year. Congress has not enacted a
foreign aid authorization bill since 1985, however; as a result, the annual
appropriations act increasingly has become a means of enacting authorizing language
that carries the force of law beyond the fiscal year.
Title I, Export-Import Bank of the United States, prohibits the use of Export-
Import Bank funds in the current fiscal year to be used to make expenditures,
contracts, or commitments for the export of nuclear equipment, fuel or technology to
any non-nuclear-weapon state, if that state is otherwise eligible to receive economic
or military assistance under this Act.
Title II, Assistance for the New Independent States of the Former Soviet
Union, appropriates $810 million for assistance to the states of the former Soviet
Union
but withholds 60 percent of funds obligated for the Government of Russia until
the President determines and certifies to the Committees on Appropriations that the
Government of Russia has terminated its efforts “to provide Iran with technical
expertise, training, technology, or equipment necessary to develop a nuclear reactor,
related nuclear research facilities or programs, or ballistic missile capability.” The
restriction does not apply to assistance for combating infectious diseases or for child
survival activities, nor does it apply to nonproliferation and disarmament programs
authorized under title V of the FREEDOM Support Act.
Congress has incorporated this language into the foreign assistance
appropriations bill for several years. In previous years, the President was
authorized to waive the restriction on the basis of vital U.S. national security
interests, or if he found that the Government of Russia was taking meaningful steps
to limit major supply contracts and to curtail the transfer of technology and
technical expertise to certain programs in Iran. The FY2001 Act does not include
such a waiver.
23 H.R. 5526, enacted by reference in P.L. 106-429; approved November 6, 2000. See also
sec. 506, Prohibition n Financing Nuclear Goods; sec. 534, Compliance with U.N. Sanctions
Against Iraq; and sec. 572, Korean Peninsula Energy Development Organization.
CRS-24
Section 549, Prohibition on Assistance to Foreign Governments That
Export Lethal Military Equipment to Countries Supporting International
Terrorism, prohibits assistance to such foreign governments that provide equipment
to any country the government of which the Secretary of State has found, pursuant
to sec. 40(d) of the AECA, to be a terrorist government. The President may waive
the prohibition if he determines it important to U.S. national interests to do so, but
must report to Congress the basis for the determination, the nature and value of
resumed assistance, and an explanation of how such assistance furthers U.S. national
interests.
Similar language has been included in the annual foreign assistance
appropriations measure since FY1994.
International Emergency Economic Powers Act24
Section 203 (Grants of Authorities; 50 U.S.C. 1702) authorizes the President
“to deal with an unusual and extraordinary threats with respect to a declared national
emergency.” After he declares a national emergency exists, pursuant to the authority
in the National Emergencies Act, the President may use the authority in this section
to 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. In terms of
nonproliferation concerns, it is pursuant to this section that the President has
continued the authority of the expired Export Administration Act, prohibited
transactions with “those who disrupt the Middle East peace process,” issued export
controls on encryption items, and established export controls related to weapons of
mass destruction.25
Enacted as title II of P.L. 95-223; approved December 28, 1977, to update and
continue authority carried earlier in the Trading With the Enemy Act (P.L. 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).
24 50 U.S.C. 1701 and following.
Legislation on Foreign Relations Through 1996, vol. III,
p. 1144.
25 See Executive Order 12947, Prohibiting Transactions with Terrorists Who Threaten To
Disrupt the Middle East Peace Process (January 23, 1995; 60 F.R. 5079; 50 U.S.C. 1701
note); Executive Order 12924,Continuation of Export Control Regulations (August 19, 1994;
59 F.R. 43437; 50 U.S.C. App. 2401 note); Executive Order 12981, Administration of Export
Controls (December 5, 1995; 60 F.R. 62981; 50 U.S.C. App. 2401); and Executive Order
13026, Administration of Export Controls on Encryption Products (November 15, 1996; 61
F.R. 58767; 50 U.S.C. App. 2401 note). The President also uses the authority in IEEPA to
issue executive orders to implement United Nations Security Council Resolutions. Of the
several that are current, Executive Order 12724, Blocking Iraqi Government Property and
Prohibiting Transactions with Iraq (August 9, 1990; 55 F.R. 33089; 50 U.S.C. 1701 note)
has relevance to issues of proliferation.
CRS-25
Iran-Iraq Arms Nonproliferation Act of 199226
Section 1604 (Sanctions Against Certain Persons) 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 (Sanctions
Against Certain Foreign Countries) 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 military 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 (Application to Iran of Certain Iraq Sanctions) 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 (P.L. 102-484; approved October 23, 1992). Sec. 1408(a) of P.L. 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.
Iran Nonproliferation Act of 200027
Sections 2 through 5 (Reports; Application; Procedures; Determination;
50 U.S.C. 1701 note) require the President to report to Congress twice a year to
identify “every foreign person with respect to whom there is credible information
26 50 U.S.C. 1701 note.
Legislation on Foreign Relations Through 1996, vol. II, p. 1389.
27 114 Stat. 38. See also sec. 708 of the Security Assistance Act of 2000 (P.L. 106-280; 114
Stat. 862; 22 U.S.C. 2797b note; approved October 6, 2000), which requires the President
to certify that Russian persons he identifies as “a party to an agreement related to commercial
cooperation on MTCR equipment or technology with a United States person” is not also one
who transfers goods, services, or technology to Iran, as identified pursuant to sec. 2(a)(1)(B)
of this Act.
CRS-26
indicating that that person, on or after January 1, 1999, transferred to Iran...” goods,
services or technology the export of which (1) is controlled for nonproliferation
reasons in accordance with various international agreements, or (2) is not controlled
by the country of origin but would subject to controls if shipped from the United
States. The President is authorized to apply a range of sanctions against any foreign
person included in his report, including denial of procurement contracts with the U.S.
government, prohibition on importation into the United States, and denial of foreign
assistance – sanctions laid out in Executive Order 12938, as amended.28 A foreign
person named in the President’s report may also be denied U.S. government sales of
items on the U.S. Munitions List and export licenses for dual-use items.
The decision to impose sanctions is left to the President, but he is required to
notify Congress of his reasons to take no action. The President may also take no
action if he finds that (1) the person in question did not “knowingly transfer”
objectionable items to Iran; (2) the goods, services or technology “did not materially
contribute to Iran’s efforts to develop nuclear, biological, or chemical weapons, or
ballistic or cruise missile systems; (3) the named person falls under the jurisdiction of
a government that is an adherent to “one or more relevant nonproliferation regimes”
and his actions were consistent with such regime’s guidelines; or (4) the government
of jurisdiction “has imposed meaningful penalties” on the named person.
Section 6 (Restrictions on Extraordinary Payments in Connection with the
International Space Station) prohibits any agency of the U.S. government from
making extraordinary payments to the Russian Aviation and Space Agency, or any
affiliates, or the Government of the Russian Federation, or any entities of the
government, until the President determines and reports to Congress that: (1) it is the
Russian government’s policy “to oppose the proliferation to Iran of weapons of mass
destruction and missile systems capable of delivering such weapons;” (2) the Russian
government has demonstrated a commitment to preventing transfers of such goods
to Iran; and (3) the Russian Aviation and Space Agency, or its affiliates, has not made
such transfers to Iran in the preceding year (other than those allowed by the
President’s certification for exemptions).
The President may allow extraordinary payments when “such payments are
necessary to prevent the imminent loss of life by or grievous injury to individuals
aboard the International Space Station.” This allowance requires the President to
notify to Congress such payments will be allowed, and to report to Congress on
details within 30 days of the initial notification. The President may also allow
extraordinary payments for specific development programs of the International Space
Station provided he notify Congress ahead of payment and that the recipients of that
payment are not subject to nonproliferation sanctions.
P.L. 106-168; approved March 14, 2000. It has not been amended.
28 Executive Order authorizing the Secretaries of Commerce, Treasury, and State to limit or
prohibit some transactions to stop the proliferation of weapons of mass destruction. Issued
November 14, 1994 (59 F.R. 59099); subsequently amended. See 50 U.S.C. 1701 notes for
current text.
CRS-27
Iraq Sanctions Act of 199029
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 (Declarations Regarding Iraq’s Long-Standing Violations of
International Law), 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.
Section 586C (Trade Embargo Against Iraq) 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 (Compliance with U.N. Sanctions Against Iraq) 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 Congress 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 (Sanctions Against Iraq) 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 Administration Act; (4) issuance of licenses or other
authorizations relating to nuclear equipment, materials, and technology; (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 (Waiver Authority), 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 weapons; 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
29
Legislation on Foreign Relations Through 1999, vol. I-B, p. 30.
CRS-28
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 (Denial of Licenses for Certain Exports to Countries Assisting
Iraq’s Rocket or Chemical, Biological, or Nuclear Weapons Capability) 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 weapons capability. While the section includes no waiver
authority, it is triggered by the President making a determination and so its
implementation rests with the executive branch.
Enacted as secs. 586-586J of the Foreign Operations, Export Financing, and
Related Programs Appropriations Act, 1991 (P.L. 101-513; approved November 5,
1990). It has not been amended.
National Emergencies Act30
Title II (50 U.S.C. 1621, 1622) authorizes the President to declare, administer,
and terminate national emergencies. Such a condition is required for the President to
exercise his authority under the International Emergency Economic Powers Act.
P.L. 94-412; approved September 14, 1976. There have been no substantive
amendments relevant to proliferation issues.
North Korea Threat Reduction Act of 1999
The North Korea Threat Reduction Act of 1999 prohibits the entering into effect
for the United States any international agreement or agreement for cooperation with
North Korea that would result in North Korea obtaining nuclear materials. The law
also prohibits U.S. issuance of export licenses for, or approval for transfer or
retransfer of, nuclear materials, facilities, components, or other goods, services, or
technology that would be subject to such an agreement. To make such materials
available, the President must determine and report to Congress that North Korea has
met certain benchmarks on the safe use of nuclear materials, including: cooperation
with the IAEA on inspections, compliance with IAEA safeguard agreements,
compliance with terms of the Agreed Framework it reached with the United States,
implementation of terms of the Joint Declaration on Denuclearization, no accrual
enriched uranium or the means to develop that material, and no efforts to acquire or
develop nuclear weapon capability. The President must also determine and certify
that it is the U.S. national interest to transfer key nuclear components to North Korea.
Enacted as subtitle B of title VIII 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 P.L. 106-113; 113 Stat.
1501A-472; approved November 29, 1999).
30
Legislation on Foreign Relations Through 1996, vol. III, p. 1150.
CRS-29
Nuclear Non-Proliferation Act of 197831
The Nuclear Non-Proliferation Act of 1978 states U.S. policy for actively
pursuing more effective international 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
international 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) (Export Licensing Procedures; 42 U.S.C. 2155a) requires the
Nuclear Regulatory Commission to publish regulations establishing 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 (Additional Requirements; 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 enrichment 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 P.L. 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 and the reorganization of the Department of State.
Nuclear Proliferation Prevention Act of 199432
The Nuclear Proliferation Prevention Act of 1994 was enacted to update current
law to reflect growing concerns about nuclear proliferation.
31
Legislation on Foreign Relations Through 1996, vol. II, p. 1417.
32
Legislation on Foreign Relations Through 1996, vol. II, p. 1356.
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Section 821 (Imposition of Procurement Sanction on Persons Engaging in
Export Activities That Contribute to Proliferation; 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
knowledge, 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 is 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 government 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 (Role of International Financial Institutions; 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 (Prohibition on Assisting Nuclear Proliferation Through the
Provision of Financing; 22 U.S.C. 3201 note) prohibits financial institutions and
persons involved with financial institutions 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
CRS-31
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 Authorization Act, Fiscal Years 1994 and 1995 (P.L. 103-236;
approved April 30, 1994). Sec. 157(b) of P.L. 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.