22 U.S.C. § 2797b — Transfers of missile equipment or technology by foreign persons

(a)(1) Subject to (c) through (g), if the President determines that after November 5, 1990 a foreign person knowingly exports, transfers, or trades MTCR equipment or technology that contributes to acquiring, designing, developing, or producing missiles in a non-MTCR-adherent country and would be subject to United States jurisdiction if United States-origin; conspires or tries to do so; facilitates it; or is covered by a determination under 50 U.S.C. 4612(b)(1), the President must impose (2)'s sanctions. (2)(A) For a Category II item, the President must deny for two years United States Government contracts concerning missile equipment or technology and licenses to transfer chapter-controlled missile equipment or technology to that person. (B) For a Category I item, the President must deny for at least two years all United States Government contracts with the person and licenses to transfer all United States Munitions List items to the person. (C) If the President also finds the conduct substantially contributed to missile design, development, or production in a non-adherent country, the President must bar, for at least two years, importing into the United States products made by that person. (b)(1) Except under (2), (a) does not apply to activity authorized by an MTCR adherent's law unless authorization was obtained by fraud or misrepresentation, or to an item transferred to an end user in an adherent country. (2) It nevertheless applies to a government-subordinate entity engaging in the exports or transfers described in section 2295a(b)(3)(A). (c) Sanctions may not be imposed, or must end, if an MTCR adherent is taking judicial or other enforcement action against the person for the conduct, or the adherent's government found the person innocent, and the President certifies to the specified Senate and House committees that the enforcement action was comprehensive and satisfactory to the United States, or that the United States accepts the basis for the innocence finding. (d) After consulting Defense and Commerce, the Secretary of State may give a person an advisory opinion about whether proposed activity would trigger sanctions. A person who in good faith relies on an opinion saying it would not, and a person who then engages in the activity, may not be sanctioned for it. (e)(1) Except where such an advisory opinion says sanctions would not apply, the President may waive (a) for a foreign person if essential to United States national security. (2) The President must notify the specified Senate and House committees at least 45 working days before issuing the waiver and include a full explanation of the reasons and circumstances. (f) There is a rebuttable presumption that the item is designed for an MTCR-listed missile if the President finds its final destination is a country whose government the Secretary of State determined, for the cited title 50 purpose, repeatedly supported international terrorism. (g) The President may waive sanctions under (1) for a product or service if the President certifies that it is essential to United States national security and the person is the sole-source supplier, no reliable alternative exists, and improved manufacturing or technology cannot meet the need promptly. (h) The President may not apply the import ban to defense articles or services procured under existing contracts or subcontracts, including options needed for national security; when the sanctioned person is a necessary sole source, the articles or services are essential, and alternatives are not readily or reasonably available; or when they are essential under defense coproduction agreements or NATO cooperation programs. The ban also does not apply to products or services under contracts made before the President publishes the intent to sanction, or to spare parts; essential component parts but not finished products; routine services and maintenance when alternatives are not readily or reasonably available; or information and technology essential to United States products or production.