22 U.S.C. § 2799aa-1

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 2799aa-1 - Nuclear reprocessing transfers, illegal exports for nuclear explosive devices, transfers of nuclear explosive devices, and nuclear detonations

(a) Prohibitions on assistance to countries involved in transfer of nuclear reprocessing equipment, materials, or technology; exceptions; procedures applicable

(1) Except as provided in paragraph (2) of this subsection, no funds made available to carry out the Foreign Assistance Act of 1961 [22 U.S.C. 2151 et seq.] or this chapter may be used for the purpose of providing economic assistance (including assistance under chapter 4 of part II of the Foreign Assistance Act of 1961 [22 U.S.C. 2346 et seq.]), providing military assistance or grant military education and training, providing assistance under chapter 6 of part II of that Act [22 U.S.C. 2348 et seq.], or extending military credits or making guarantees, to any country which the President determines-

(A) delivers nuclear reprocessing equipment, materials, or technology to any other country on or after August 4, 1977, or receives such equipment, materials, or technology from any other country on or after August 4, 1977 (except for the transfer of reprocessing technology associated with the investigation, under international evaluation programs in which the United States participates, of technologies which are alternatives to pure plutonium reprocessing), or

(B) is a non-nuclear-weapon state which, on or after August 8, 1985, exports illegally (or attempts to export illegally) from the United States any material, equipment, or technology which would contribute significantly to the ability of such country to manufacture a nuclear explosive device, if the President determines that the material, equipment, or technology was to be used by such country in the manufacture of a nuclear explosive device.

For purposes of clause (B), an export (or attempted export) by a person who is an agent of, or is otherwise acting on behalf of or in the interests of, a country shall be considered to be an export (or attempted export) by that country.

(2) Notwithstanding paragraph (1) of this subsection, the President in any fiscal year may furnish assistance which would otherwise be prohibited under that paragraph if he determines and certifies in writing during that fiscal year to the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and the Committee on Foreign Relations of the Senate that the termination of such assistance would be seriously prejudicial to the achievement of United States nonproliferation objectives or otherwise jeopardize the common defense and security. The President shall transmit with such certification a statement setting forth the specific reasons therefor.

(3)

(A) A certification under paragraph (2) of this subsection shall take effect on the date on which the certification is received by the Congress. However, if, within 30 calendar days after receiving this certification, the Congress enacts a joint resolution stating in substance that the Congress disapproves the furnishing of assistance pursuant to the certification, then upon the enactment of that resolution the certification shall cease to be effective and all deliveries of assistance furnished under the authority of that certification shall be suspended immediately.

(B) Any joint resolution under this paragraph shall be considered in the Senate in accordance with the provisions of section 601(b) of the International Security Assistance and Arms Export Control Act of 1976.

(b) Prohibitions on assistance to countries involved in transfer or use of nuclear explosive devices; exceptions; procedures applicable

(1) Except as provided in paragraphs (4), (5), and (6), in the event that the President determines that any country, after the effective date of part B of the Nuclear Proliferation Prevention Act of 1994-

(A) transfers to a non-nuclear-weapon state a nuclear explosive device,

(B) is a non-nuclear-weapon state and either-

(i) receives a nuclear explosive device, or

(ii) detonates a nuclear explosive device,

(C) transfers to a non-nuclear-weapon state any design information or component which 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 device, or

(D) is a non-nuclear-weapon state and seeks and receives any design information or component which 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,

then the President shall forthwith report in writing his determination to the Congress and shall forthwith impose the sanctions described in paragraph (2) against that country.

(2) The sanctions referred to in paragraph (1) are as follows:

(A) The United States Government shall terminate assistance to that country under the Foreign Assistance Act of 1961 [22 U.S.C. 2151 et seq.], except for humanitarian assistance or food or other agricultural commodities.

(B) The United States Government shall terminate-

(i) sales to that country under this chapter of any defense articles, defense services, or design and construction services, and

(ii) licenses for the export to that country of any item on the United States Munitions List.

(C) The United States Government shall terminate all foreign military financing for that country under this chapter.

(D) The United States Government shall deny to that country any credit, credit guarantees, or other financial assistance by any department, agency, or instrumentality of the United States Government, except that the sanction of this subparagraph shall not apply-

(i) to any transaction subject to the reporting requirements of title V of the National Security Act of 1947 [50 U.S.C. 3091 et seq.] (relating to congressional oversight of intelligence activities),

(ii) to medicines, medical equipment, and humanitarian assistance, or

(iii) to any credit, credit guarantee, or financial assistance provided by the Department of Agriculture to support the purchase of food or other agricultural commodity.

(E) The United States Government shall oppose, in accordance with section 262d of this title, the extension of any loan or financial or technical assistance to that country by any international financial institution.

(F) The United States Government shall prohibit any United States bank from making any loan or providing any credit to the government of that country, except for loans or credits for the purpose of purchasing food or other agricultural commodities, which includes fertilizer.

(G) The authorities of section 4605¹ of title 50 shall be used to prohibit exports to that country of specific goods and technology (excluding food and other agricultural commodities), except that such prohibition shall not apply to any transaction subject to the reporting requirements of title V of the National Security Act of 1947 [50 U.S.C. 3091 et seq.] (relating to congressional oversight of intelligence activities).

(3) As used in this subsection-

(A) the term "design information" means specific information that relates to the design of a nuclear explosive device and that is not available to the public; and

(B) the term "component" means a specific component of a nuclear explosive device.

(4)

(A) Notwithstanding paragraph (1) of this subsection, the President may, for a period of not more than 30 days of continuous session, delay the imposition of sanctions which would otherwise be required under paragraph (1)(A) or (1)(B) of this subsection if the President first transmits to the Speaker of the House of Representatives, and to the chairman of the Committee on Foreign Relations of the Senate, a certification that he has determined that an immediate imposition of sanctions on that country would be detrimental to the national security of the United States. Not more than one such certification may be transmitted for a country with respect to the same detonation, transfer, or receipt of a nuclear explosive device.

(B) If the President transmits a certification to the Congress under subparagraph (A), a joint resolution which would permit the President to exercise the waiver authority of paragraph (5) of this subsection shall, if introduced in either House within thirty days of continuous session after the Congress receives this certification, be considered in the Senate in accordance with subparagraph (C) of this paragraph.

(C) Any joint resolution under this paragraph shall be considered in the Senate in accordance with the provisions of section 601(b) of the International Security Assistance and Arms Export Control Act of 1976.

(D) For purposes of this paragraph, the term "joint resolution" means a joint resolution the matter after the resolving clause of which is as follows: "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 the date of receipt of the certification inserted in the first blank and the name of the country inserted in the second blank.

(5) Notwithstanding paragraph (1) of this subsection, if the Congress enacts a joint resolution under paragraph (4) of this subsection, the President may waive any sanction which would otherwise be required under paragraph (1)(A) or (1)(B) if he determines and certifies in writing to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate that the imposition of such sanction would be seriously prejudicial to the achievement of United States nonproliferation objectives or otherwise jeopardize the common defense and security. The President shall transmit with such certification a statement setting forth the specific reasons therefor.

(6)

(A) In the event the President is required to impose sanctions against a country under paragraph (1)(C) or (1)(D), the President shall forthwith so inform such country and shall impose the required sanctions beginning 30 days after submitting to the Congress the report required by paragraph (1) unless, and to the extent that, there is enacted during the 30-day period a law prohibiting the imposition of such sanctions.

(B) Notwithstanding any other provision of law, the sanctions which are required to be imposed against a country under paragraph (1)(C) or (1)(D) shall not apply if the President determines and certifies in writing to the Committee on Foreign Relations and the Committee on Governmental Affairs of the Senate and the Committee on Foreign Affairs of the House of Representatives that the application of such sanctions against such country would have a serious adverse effect on vital United States interests. The President shall transmit with such certification a statement setting forth the specific reasons therefor.

(7) For purposes of this subsection, continuity of session is broken only by an adjournment of Congress sine die and the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of any period of time in which Congress is in continuous session.

(8) The President may not delegate or transfer his power, authority, or discretion to make or modify determinations under this subsection.

(c) "Non-nuclear-weapon state" defined

As used in this section, the term "non-nuclear-weapon state" means any country which is not a nuclear-weapon state, as defined in Article IX(3) of the Treaty on the Non-Proliferation of Nuclear Weapons.

¹See References in Text note below.

22 U.S.C. § 2799aa-1

Pub. L. 90-629 ch. 10, §102, as added Pub. L. 103-236, title VIII, §826(a), Apr. 30, 1994, 108 Stat. 516; amended Pub. L. 105-194, §2(a)-(c), July 14, 1998, 112 Stat. 627; Pub. L. 113-276, title II, §208(a)(1), Dec. 18, 2014, 128 Stat. 2992.

EDITORIAL NOTES

REFERENCES IN TEXTThe Foreign Assistance Act of 1961, referred to in subsecs. (a)(1) and (b)(2)(A), is Pub. L. 87-195, Sept. 4, 1961, 75 Stat. 424, which is classified principally to chapter 32 (§2151 et seq.) of this title. Chapters 4 and 6 of part II of the Act are classified generally to parts IV (§2346 et seq.) and VI (§2348 et seq.), respectively, of subchapter II of chapter 32 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2151 of this title and Tables. This chapter, referred to in subsecs. (a)(1) and (b)(2)(B)(i), (C), was in the original "this Act", meaning Pub. L. 90-629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables.Section 601(b) of the International Security Assistance and Arms Export Control Act of 1976, referred to in subsecs. (a)(3)(B) and (b)(4)(C), is section 601(b) of Pub. L. 94-329, title VI, June 30, 1976, 90 Stat. 765, which is not classified to the Code. For effective date of part B of the Nuclear Proliferation Prevention Act of 1994 [part B of title VIII of Pub. L. 103-236], referred to in subsec. (b)(1), as 60 days after Apr. 30, 1994, see section 831 of Pub. L. 103-236 set out as an Effective Date note under section 6301 of this title. The National Security Act of 1947, referred to in subsec. (b)(2)(D)(i), (G), is act July 26, 1947, ch. 343, 61 Stat. 495, which was formerly classified principally to chapter 15 (§401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§3001 et seq.) of Title 50. Title V of the Act is now classified generally to subchapter III (§3091 et seq.) of chapter 44 of Title 50. For complete classification of this Act to the Code, see Tables.Section 4605 of title 50, referred to in subsec. (b)(2)(G), was repealed by Pub. L. 115-232, div. A, title XVII, §1766(a), Aug. 13, 2018, 132 Stat. 2232. Section 102 of the Arms Export Control Act, referred to in subsec. (b)(4)(D), is classified to this section.

AMENDMENTS2014-Subsec. (a)(2). Pub. L. 113-276 substituted "the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and" for "the Speaker of the House of Representatives and".1998-Subsec. (b)(2)(D)(ii). Pub. L. 105-194, §2(c), inserted "medicines, medical equipment, and" after "to".Subsec. (b)(2)(D)(iii). Pub. L. 105-194, §2(a), added cl. (iii).Subsec. (b)(2)(F). Pub. L. 105-194, §2(b), inserted ",which includes fertilizer" before period at end.

STATUTORY NOTES AND RELATED SUBSIDIARIES

CHANGE OF NAMECommittee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9. 2004.

EFFECTIVE DATE OF 1998 AMENDMENT Pub. L. 105-194, §2(d), July 14, 1998, 112 Stat. 627, provided that: "The amendment made by subsection (a)(3) [amending this section] shall apply to any credit, credit guarantee, or other financial assistance provided by the Department of Agriculture before, on, or after the date of enactment of this Act [July 14, 1998] through September 30, 1999."

EFFECTIVE DATESection effective 60 days after Apr. 30, 1994, see section 831 of Pub. L. 103-236 set out as a note under section 6301 of this title.

WAIVER OF CERTAIN SANCTIONS AGAINST NORTH KOREA Pub. L. 110-252, title I, §14051405,, 122 Stat. 2337, as amended by Pub. L. 113-188, title VIII, §801, Nov. 26, 2014, 128 Stat. 2020; Pub. L. 113-235, div. J, title VII, §7034(i), Dec. 16, 2014, 128 Stat. 2624, provided that:"(a) WAIVER AUTHORITY.- "(1) IN GENERAL.-Except as provided in subsection (b), the President may waive in whole or in part, with respect to North Korea, the application of any sanction contained in subparagraph (A), (B), (D) or (G) under section 102(b)(2) of the Arms Export Control Act (22 U.S.C. 2799aa-1(b) [(2)(A), (B), (D), (G)]), for the purpose of providing assistance related to- "(A) the implementation and verification of the compliance by North Korea with its commitment, undertaken in the Joint Statement of September 19, 2005, to abandon all nuclear weapons and existing nuclear programs as part of the verifiable denuclearization of the Korean Peninsula; and "(B) the elimination of the capability of North Korea to develop, deploy, transfer, or maintain weapons of mass destruction and their delivery systems."(2) LIMITATION.-The authority under paragraph (1) shall expire 5 years after the date of enactment of this Act [June 30, 2008]."(b) EXCEPTIONS.- "(1) LIMITED EXCEPTION RELATED TO CERTAIN SANCTIONS AND PROHIBITIONS.-The authority under subsection (a) shall not apply with respect to a sanction or prohibition under subparagraph (B) or (G) of section 102(b)(2) of the Arms Export Control Act [22 U.S.C. 2799aa-1(b) [(2)(B), (G)], unless the President determines and certifies to the appropriate congressional committees that-"(A) all reasonable steps will be taken to assure that the articles or services exported or otherwise provided will not be used to improve the military capabilities of the armed forces of North Korea; and"(B) such waiver is in the national security interests of the United States."(2) LIMITED EXCEPTION RELATED TO CERTAIN ACTIVITIES.-Unless the President determines and certifies to the appropriate congressional committees that using the authority under subsection (a) is vital to the national security interests of the United States, such authority shall not apply with respect to- "(A) an activity described in subparagraph (A) of section 102(b)(1) of the Arms Export Control Act [22 U.S.C. 2799aa-1(b)(1)(A)] that occurs after September 19, 2005, and before the date of the enactment of this Act [June 30, 2008];"(B) an activity described in subparagraph (C) of such section that occurs after September 19, 2005; or"(C) an activity described in subparagraph (D) of such section that occurs after the date of enactment of this Act. "(3) EXCEPTION RELATED TO CERTAIN ACTIVITIES OCCURRING AFTER DATE OF ENACTMENT.-The authority under subsection (a) shall not apply with respect to an activity described in subparagraph (A) or (B) of section 102(b)(1) of the Arms Export Control Act [22 U.S.C. 2799aa-1(b)(1)(A), (B)] that occurs after the date of the enactment of this Act."(4) LIMITED EXCEPTION RELATED TO LETHAL WEAPONS.-The authority under subsection (a) shall not apply with respect to any export of lethal defense articles that would be prevented by the application of section 102(b)(2) of the Arms Export Control Act [22 U.S.C. 2799aa-1(b)(2)] .""(c) APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.-In this section, the term 'appropriate congressional committees' means-"(1) the Committees on Appropriations, Armed Services, and Foreign Relations of the Senate; and"(2) the Committees on Appropriations, Armed Services, and Foreign Affairs of the House of Representatives."[Amendment of section 1405 of Pub. L. 110-252 set out above, by section 7034(i) of div. J of Pub. L. 113-235 which directed that subsec. (c) of section 1405 be repealed, was not executed to reflect the probable intent of Congress and the prior amendment by section 801 of Pub. L. 113-188 which struck out subsec. (c) and redesignated subsec. (d) as (c).]

EXEMPTION FOR RHINOCEROS, TIGER, ASIAN ELEPHANT, AND GREAT APE CONSERVATION PROGRAMS Pub. L. 107-63, 115 Stat. 421, provided in part: "That funds made available under this Act [see Tables for classification], Public Law 106-291 [see Tables for classification], and Public Law 106-554 [see Tables for classification] and hereafter in annual appropriations Acts for rhinoceros, tiger, Asian elephant, and great ape conservation programs are exempt from any sanctions imposed against any country under section 102 of the Arms Export Control Act (22 U.S.C. 2799aa-1)."Similar provisions were contained in the following prior appropriation acts: Pub. L. 106-291, 114 Stat. 927. Pub. L. 106-113, div. B, §1000(a)(3) [title I], Nov. 29, 1999, 113 Stat. 1535, 1501A-141.

WAIVER OF CERTAIN SANCTIONS AGAINST INDIA AND PAKISTAN Pub. L. 106-79, title IX, §90019001,, 113 Stat. 1283, as amended by Pub. L. 107-228, div. B, title XIV, §1405(b), Sept. 30, 2002, 116 Stat. 1458, provided that: "(a) WAIVER AUTHORITY.-Except as provided in subsections (b) and (c) of this section, the President may waive, with respect to India and Pakistan, the application of any sanction contained in section 101 or 102 of the Arms Export Control Act (22 U.S.C. 2799aa or 22 U.S.C. 2799aa-1), section 2(b)(4) of the Export Import Bank Act of 1945 (12 U.S.C. 635(b)(4)), or section 620E(e) of the Foreign Assistance Act of 1961, as amended, (22 U.S.C. 2375(e)). "(b) EXCEPTION.-The authority to waive the application of a sanction or prohibition (or portion thereof) under subsection (a) shall not apply with respect to a sanction or prohibition contained in subparagraph (B), (C), or (G) of section 102(b)(2) of the Arms Export Control Act [22 U.S.C. 2799aa-1(b)(2)(B), (C), (G)], unless the President determines, and so certifies to the Congress, that the application of the restriction would not be in the national security interests of the United States."(c) TERMINATION OF WAIVER.-The President may not exercise the authority of subsection (a), and any waiver previously issued under subsection (a) shall cease to apply, with respect to India or Pakistan, if that country detonates a nuclear explosive device after the date of the enactment of this Act [Oct. 25, 1999] or otherwise takes such action which would cause the President to report pursuant to section 102(b)(1) of the Arms Export Control Act [22 U.S.C. 2799aa-1(b)(1)] ."(d) TARGETED SANCTIONS.- "(1) SENSE OF THE CONGRESS.-"(A) it is the sense of the Congress that the broad application of export controls to nearly 300 Indian and Pakistani entities is inconsistent with the specific national security interests of the United States and that this control list requires refinement; and"(B) export controls should be applied only to those Indian and Pakistani entities that make direct and material contributions to weapons of mass destruction and missile programs and only to those items that can contribute to such programs."(2) REPORTING REQUIREMENT.-Not later than 60 days after the date of the enactment of this Act [Oct. 25, 1999], the President shall submit both a classified and unclassified report to the appropriate congressional committees listing those Indian and Pakistani entities whose activities contribute to missile programs or weapons of mass destruction programs."(e) CONGRESSIONAL NOTIFICATION.-The issuance of a license for export of a defense article, defense service, or technology under the authority of this section shall be subject to the same requirements as are applicable to the export of items described in section 36(c) of the Arms Export Control Act (22 U.S.C. 2776(c)), including the transmittal of information and the application of congressional review procedures. The application of these requirements shall be subject to the dollar amount thresholds specified in that section."(f) REPEAL.-[Repealed section 101(a) [title IX] of div. A of Pub. L. 105-277 formerly set out below.]"

INDIA-PAKISTAN RELIEF Pub. L. 105-277, div. A, §101(a) [title IX], Oct. 21, 1998, 112 Stat. 2681, 2681-40, known as the India-Pakistan Relief Act, provided for a one-year waiver of certain sanctions against India and Pakistan under the Arms Export Control Act, prior to repeal by Pub. L. 106-79, title IX, §9001(f), Oct. 25, 1999, 113 Stat. 1284, effective Oct. 21, 1999.

EFFECT ON EXISTING SANCTIONS Pub. L. 105-194, §2(e), July 14, 1998, 112 Stat. 627, provided that: "Any sanction imposed under section 102(b)(1) of the Arms Export Control Act [subsec. (b)(1) of this section] before the date of the enactment of this Act [July 14, 1998] shall cease to apply upon that date with respect to the items described in the amendments made by subsections (b) and (c) [amending this section]. In the case of the amendment made by subsection (a)(3) [amending this section], any sanction imposed under section 102(b)(1) of the Arms Export Control Act before the date of the enactment of this Act shall not be in effect during the period beginning on that date and ending on September 30, 1999, with respect to the activities and items described in the amendment."

EXECUTIVE DOCUMENTS

DELEGATION OF FUNCTIONS Functions of President under subsec. (a)(2) of this section delegated to Secretary of State by section 1(a)(iii) of Ex. Ord. No. 13346, July 8, 2004, 69 F.R. 41905, set out as a note under section 301 of Title 3, The President.

SANCTIONS AGAINST INDIA FOR DETONATION OF A NUCLEAR EXPLOSIVE DEVICEDetermination of President of the United States, No. 98-22, May 13, 1998, 63 F.R. 27665, provided a determination that India, a non-nuclear-weapon state, detonated a nuclear explosive device on May 11, 1998, and imposed sanctions described in subsec. (b)(2) of this section.

SANCTIONS AGAINST PAKISTAN FOR DETONATION OF A NUCLEAR EXPLOSIVE DEVICEDetermination of President of the United States, No. 98-25, May 30, 1998, 63 F.R. 31881, provided a determination that Pakistan, a non-nuclear-weapon state, detonated a nuclear explosive device on May 28, 1998, and imposed sanctions described in subsec. (b)(2) of this section.

WAIVER OF CERTAIN SANCTIONS AGAINST INDIA AND PAKISTANProvisions relating to waiver of sanctions against India and Pakistan consistent with section 9001 of Pub. L. 106-79 set out as a note above, or section 101(a) [title IX, §902] of Pub. L. 105-277 formerly set out in a note above, were contained in the following: Determination of President of the United States, No. 2001-28, Sept. 22, 2001, 66 F.R. 50095.Determination of President of the United States, No. 2001-23, Aug. 9, 2001, 66 F.R. 44521. Determination of President of the United States, No. 2001-11, Jan. 19, 2001, 66 F.R. 8503.Determination of President of the United States, No. 2000-18, Mar. 16, 2000, 65 F.R. 16297. Determination of President of the United States, No. 2000-4, Oct. 27, 1999, 64 F.R. 60649.Determination of President of the United States, No. 99-7, Dec. 1, 1998, 34 Weekly Compilation of Presidential Documents 2402, Dec. 7, 1998.

design and construction services

"design and construction services" means, with respect to sales under section 2769 of this title, the design and construction of real property facilities, including necessary construction equipment and materials, engineering services, construction contract management services relating thereto, and technical advisory assistance in the operation and maintenance of real property facilities provided or performed by any department or agency of the Department of Defense or by a contractor pursuant to a contract with such department or agency;

training

"training" includes formal or informal instruction of foreign students in the United States or overseas by officers or employees of the United States, contract technicians, or contractors (including instruction at civilian institutions), or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice to foreign military units and forces;