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

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

5

Legislation on Foreign Relations Through 1996, vol. II, page 707.

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 20002001; 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. 101222; 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 nonmarket 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. 97113; 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-nuclearweapon 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), IndiaPakistan 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:

20

!

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 nonnuclear-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.

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 manmade 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. 102511; 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 ExportImport 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

27

50 U.S.C. 1701 note. Legislation on Foreign Relations Through 1996, vol. II, p. 1389.

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.

CRS-30

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.