50 U.S.C. § 4613 — Chemical and biological weapons pro-

Page 1192 TITLE 50—WAR AND NATIONAL DEFENSE § 4613 lar capability, as well as the specially de- signed production facilities for these systems; (2) the term ‘‘Missile Technology Control Regime’’ or ‘‘MTCR’’ means the policy state- ment, between the United States, the United Kingdom, the Federal Republic of Germany, France, Italy, Canada, and Japan, announced on April 16, 1987, to restrict sensitive missile- relevant transfers based on the MTCR Annex, and any amendments thereto; (3) the term ‘‘MTCR adherent’’ means a country that participates in the MTCR or that, pursuant to an international under- standing to which the United States is a party, controls MTCR equipment or tech- nology in accordance with the criteria and standards set forth in the MTCR; (4) the term ‘‘MTCR Annex’’ means the Guidelines and Equipment and Technology Annex of the MTCR, and any amendments thereto; (5) the terms ‘‘missile equipment or tech- nology’’ and ‘‘MTCR equipment or tech- nology’’ mean those items listed in category I or category II of the MTCR Annex; (6) the term ‘‘foreign person’’ means any per- son other than a United States person; (7)(A) the term ‘‘person’’ means a natural person as well as a corporation, business asso- ciation, partnership, society, trust, any other nongovernmental entity, organization, or group, and any governmental entity operating as a business enterprise, and any successor of any such entity; and (B) in the case of countries where it may be impossible to identify a specific governmental entity referred to in subparagraph (A), the term ‘‘person’’ means— (i) all activities of that government relat- ing to the development or production of any missile equipment or technology; and (ii) all activities of that government af- fecting the development or production of aircraft, electronics, and space systems or equipment; and (8) the term ‘‘otherwise engaged in the trade of’’ means, with respect to a particular export or transfer, to be a freight forwarder or des- ignated exporting agent, or a consignee or end user of the item to be exported or transferred. (Pub. L. 96–72, § 11B, as added Pub. L. 101–510, div. A, title XVII, § 1702(b), Nov. 5, 1990, 104 Stat. 1741.) Editorial Notes REFERENCES IN TEXT The Arms Export Control Act, referred to in subsec. (a)(1)(A)(i), is Pub. L. 90–269, Oct. 22, 1968, 82 Stat. 1320. Chapter 7 of the Act is classified generally to sub- chapter VII (§ 2797 et seq.) of chapter 39 of Title 22, For- eign Relations and Intercourse. For complete classi- fication of this Act to the Code, see Short Title note set out under section 2751 of Title 22 and Tables. Sections 4605, 4606, and 4610 of this title, referred to in subsecs. (a)(1)(A)(i), (2) and (c), were repealed by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232. This chapter, referred to in subsecs. (a)(1)(B) and (b)(1), was in the original ‘‘this Act’’, meaning Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, known as the Export Administration Act of 1979, which was classified prin- cipally to this chapter, prior to repeal by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232, except for sections 11A, 11B, and 11C thereof (50 U.S.C. 4611, 4612, 4613). CODIFICATION Section was formerly classified to section 2410b of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. Statutory Notes and Related Subsidiaries POLICY ON MISSILE TECHNOLOGY CONTROL Pub. L. 101–510, div. A, title XVII, § 1701, Nov. 5, 1990, 104 Stat. 1738, provided that: ‘‘It should be the policy of the United States to take all appropriate measures— ‘‘(1) to discourage the proliferation, development, and production of the weapons, material, and tech- nology necessary to produce or acquire missiles that can deliver weapons of mass destruction; ‘‘(2) to discourage countries and private persons in other countries from aiding and abetting any states from acquiring such weapons, material, and tech- nology; ‘‘(3) to strengthen United States and existing mul- tilateral export controls to prohibit the flow of mate- rials, equipment, and technology that would assist countries in acquiring the ability to produce or ac- quire missiles that can deliver weapons of mass de- struction, including missiles, warheads and weaponization technology, targeting technology, test and evaluation technology, and range and weapons ef- fect measurement technology; and ‘‘(4) with respect to the Missile Technology Control Regime (‘MTCR’) and its participating governments— ‘‘(A) to improve enforcement and seek a common and stricter interpretation among MTCR members of MTCR principles; ‘‘(B) to increase the number of countries that ad- here to the MTCR; and ‘‘(C) to increase information sharing among United States agencies and among governments on missile technology transfer, including export li- censing, and enforcement activities.’’ Executive Documents DELEGATION OF FUNCTIONS Functions of President under this section delegated to Secretary of Commerce, with certain exceptions, by section 2(b) of Ex. Ord. No. 12851, June 11, 1993, 58 F.R. 33181, set out as a note under section 2797 of Title 22, Foreign Relations and Intercourse. § 4613. Chemical and biological weapons pro- liferation sanctions (a) Imposition of sanctions (1) Determination by the President Except as provided in subsection (b)(2), the President shall impose both of the sanctions described in subsection (c) if the President de- termines that a foreign person, on or after Oc- tober 28, 1991, has knowingly and materially contributed— (A) through the export from the United States of any goods or technology that are subject to the jurisdiction of the United States under this chapter, or (B) through the export from any other country of any goods or technology that would be, if they were United States goods or technology, subject to the jurisdiction of the United States under this chapter, to the efforts by any foreign country, project, or entity described in paragraph (2) to use, de- Page 1193 TITLE 50—WAR AND NATIONAL DEFENSE § 4613 1 See References in Text note below. velop, produce, stockpile, or otherwise acquire chemical or biological weapons. (2) Countries, projects, or entities receiving as- sistance Paragraph (1) applies in the case of— (A) any foreign country that the President determines has, at any time after January 1, 1980— (i) used chemical or biological weapons in violation of international law; (ii) used lethal chemical or biological weapons against its own nationals; or (iii) made substantial preparations to en- gage in the activities described in clause (i) or (ii); (B) any foreign country whose government is determined for purposes of section 4605(j) 1 of this title to be a government that has re- peatedly provided support for acts of inter- national terrorism; or (C) any other foreign country, project, or entity designated by the President for pur- poses of this section. (3) Persons against which sanctions are to be imposed Sanctions shall be imposed pursuant to paragraph (1) on— (A) the foreign person with respect to which the President makes the determina- tion described in that paragraph; (B) any successor entity to that foreign person; (C) any foreign person that is a parent or subsidiary of that foreign person if that par- ent or subsidiary knowingly assisted in the activities which were the basis of that deter- mination; and (D) any foreign person that is an affiliate of that foreign person if that affiliate know- ingly assisted in the activities which were the basis of that determination and if that affiliate is controlled in fact by that foreign person. (b) Consultations with and actions by foreign government of jurisdiction (1) Consultations If the President makes the determinations described in subsection (a)(1) with respect to a foreign person, the Congress urges the Presi- dent to initiate consultations immediately with the government with primary jurisdic- tion over that foreign person with respect to the imposition of sanctions pursuant to this section. (2) Actions by government of jurisdiction In order to pursue such consultations with that government, the President may delay im- position of sanctions pursuant to this section for a period of up to 90 days. Following these consultations, the President shall impose sanctions unless the President determines and certifies to the Congress that that government has taken specific and effective actions, in- cluding appropriate penalties, to terminate the involvement of the foreign person in the activities described in subsection (a)(1). The President may delay imposition of sanctions for an additional period of up to 90 days if the President determines and certifies to the Con- gress that that government is in the process of taking the actions described in the preceding sentence. (3) Report to Congress The President shall report to the Congress, not later than 90 days after making a deter- mination under subsection (a)(1), on the status of consultations with the appropriate govern- ment under this subsection, and the basis for any determination under paragraph (2) of this subsection that such government has taken specific corrective actions. (c) Sanctions (1) Description of sanctions The sanctions to be imposed pursuant to subsection (a)(1) are, except as provided in paragraph (2) of this subsection, the following: (A) Procurement sanction The United States Government shall not procure, or enter into any contract for the procurement of, any goods or services from any person described in subsection (a)(3). (B) Import sanctions The importation into the United States of products produced by any person described in subsection (a)(3) shall be prohibited. (2) Exceptions The President shall not be required to apply or maintain sanctions under this section— (A) in the case of procurement of defense articles or defense services— (i) under existing contracts or sub- contracts, including the exercise of op- tions for production quantities to satisfy United States operational military re- quirements; (ii) if the President determines that the person or other entity to which the sanc- tions would otherwise be applied is a sole source supplier of the defense articles or services, that the defense articles or serv- ices are essential, and that alternative sources are not readily or reasonably available; or (iii) if the President determines that such articles or services are essential to the national security under defense co- production agreements; (B) to products or services provided under contracts entered into before the date on which the President publishes his intention to impose sanctions; (C) to— (i) spare parts, (ii) component parts, but not finished products, essential to United States prod- ucts or production, or (iii) routine servicing and maintenance of products, to the extent that alternative sources are not readily or reasonably available; (D) to information and technology essen- tial to United States products or production; or Page 1194 TITLE 50—WAR AND NATIONAL DEFENSE §§ 4614 to 4621 (E) to medical or other humanitarian items. (d) Termination of sanctions The sanctions imposed pursuant to this sec- tion shall apply for a period of at least 12 months following the imposition of sanctions and shall cease to apply thereafter only if the President determines and certifies to the Con- gress that reliable information indicates that the foreign person with respect to which the de- termination was made under subsection (a)(1) has ceased to aid or abet any foreign govern- ment, project, or entity in its efforts to acquire chemical or biological weapons capability as de- scribed in that subsection. (e) Waiver (1) Criterion for waiver The President may waive the application of any sanction imposed on any person pursuant to this section, after the end of the 12-month period beginning on the date on which that sanction was imposed on that person, if the President determines and certifies to the Con- gress that such waiver is important to the na- tional security interests of the United States. (2) Notification of and report to Congress If the President decides to exercise the waiv- er authority provided in paragraph (1), the President shall so notify the Congress not less than 20 days before the waiver takes effect. Such notification shall include a report fully articulating the rationale and circumstances which led the President to exercise the waiver authority. (f) Definition of foreign person For the purposes of this section, the term ‘‘foreign person’’ means— (1) an individual who is not a citizen of the United States or an alien admitted for perma- nent residence to the United States; or (2) a corporation, partnership, or other enti- ty which is created or organized under the laws of a foreign country or which has its prin- cipal place of business outside the United States. (Pub. L. 96–72, § 11C, as added and amended Pub. L. 102–182, title III, §§ 305(a), 309(b)(1), Dec. 4, 1991, 105 Stat. 1247, 1258.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a)(1), was in the original ‘‘this Act’’, meaning Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, known as the Export Administration Act of 1979, which was classified principally to this chapter, prior to repeal by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232, except for sections 11A, 11B, and 11C thereof (50 U.S.C. 4611, 4612, 4613). Section 4605(j) of this title, referred to in subsec. (a)(2)(B), was repealed by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232. For similar provisions, see section 4813(c) of this title, as enacted by Pub. L. 115–232. CODIFICATION Section was formerly classified to section 2410c of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. PRIOR PROVISIONS A prior section 11C of Pub. L. 96–72, as added Pub. L. 102–138, title V, § 505(a), Oct. 28, 1991, 105 Stat. 724, con- tained provisions substantially identical to those added by section 305(a) of Pub. L. 102–182, prior to repeal by Pub. L. 102–182, § 309(a). AMENDMENTS 1991—Subsec. (a)(1). Pub. L. 102–182, § 309(b)(1), sub- stituted ‘‘October 28, 1991’’ for ‘‘December 4, 1991’’. Statutory Notes and Related Subsidiaries DEPARTMENT OF DEFENSE REVIEW OF EXPORT LICENSES FOR CERTAIN BIOLOGICAL PATHOGENS Pub. L. 104–106, div. A, title XIII, § 1323, Feb. 10, 1996, 110 Stat. 480, provided that: ‘‘(a) DEPARTMENT OF DEFENSE REVIEW.—Any applica- tion to the Secretary of Commerce for a license for the export of a class 2, class 3, or class 4 biological patho- gen to a country identified to the Secretary under sub- section (c) as a country that is known or suspected to have a biological weapons program shall be referred to the Secretary of Defense for review. The Secretary of Defense shall notify the Secretary of Commerce within 15 days after receipt of an application under the pre- ceding sentence whether the export of such biological pathogen pursuant to the license would be contrary to the national security interests of the United States. ‘‘(b) DENIAL OF LICENSE IF CONTRARY TO NATIONAL SE- CURITY INTEREST.—A license described in subsection (a) shall be denied by the Secretary of Commerce if it is determined that the export of such biological pathogen to that country would be contrary to the national secu- rity interests of the United States. ‘‘(c) IDENTIFICATION OF COUNTRIES KNOWN OR SUS- PECTED TO HAVE A PROGRAM TO DEVELOP OFFENSIVE BI- OLOGICAL WEAPONS.—(1) The Secretary of Defense shall determine, for the purposes of this section, those coun- tries that are known or suspected to have a program to develop offensive biological weapons. Upon making such determination, the Secretary shall provide to the Secretary of Commerce a list of those countries. ‘‘(2) The Secretary of Defense shall update the list under paragraph (1) on a regular basis. Whenever a country is added to or deleted from such list, the Sec- retary shall notify the Secretary of Commerce. ‘‘(3) Determination under this subsection of countries that are known or suspected to have a program to de- velop offensive biological weapons shall be made in consultation with the Secretary of State and the intel- ligence community. ‘‘(d) DEFINITION.—For purposes of this section, the term ‘class 2, class 3, or class 4 biological pathogen’ means any biological pathogen that is characterized by the Centers for Disease Control as a class 2, class 3, or class 4 biological pathogen.’’ Executive Documents DELEGATION OF FUNCTIONS Functions of President under this section delegated to Secretary of State, with certain exceptions, by sec- tion 1(a) of Ex. Ord. No. 12851, June 11, 1993, 58 F.R. 33181, set out as a note under section 2797 of Title 22, Foreign Relations and Intercourse. §§ 4614 to 4621. Repealed. Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232 Section 4614, Pub. L. 96–72, § 12, Sept. 29, 1979, 93 Stat. 530; Pub. L. 97–145, §§ 3, 5, Dec. 29, 1981, 95 Stat. 1727, 1728; Pub. L. 99–64, title I, § 113, July 12, 1985, 99 Stat. 148; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–418, title II, § 2427, Aug. 23, 1988, 102 Stat. 1361; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 114–125, title VIII, § 802(d)(2), Feb. 24, 2016, 130 Stat. 210,