Sanctions for aiding chemical or biological weapons

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1. A sanction aimed at suppliers

Section 81 of the Arms Export Control Act, codified at 22 U.S.C. 2798, sits in chapter 8 of the Act and targets foreign persons who help chemical or biological weapons programs (22 U.S.C. 2798). The President must impose two sanctions on finding that a foreign person, on or after 28 October 1991, knowingly and materially contributed to such a program (22 U.S.C. 2798(a)(1)). The contribution must be to the efforts of a covered country, project or entity to use, develop, produce, stockpile or otherwise acquire chemical or biological weapons.

The statute names three channels of contribution. The first is export from the United States of goods or technology subject to American jurisdiction (22 U.S.C. 2798(a)(1)(A)). The second is export from another country of goods or technology that would be subject to American jurisdiction if they were American (22 U.S.C. 2798(a)(1)(B)). The third is any other transaction not subject to sanctions under the Export Administration Act of 1979 (22 U.S.C. 2798(a)(1)(C)).

2. Who counts as a foreign person

The section has its own definition (22 U.S.C. 2798(f)). A foreign person is an individual who is neither an American citizen nor an alien admitted for permanent residence. It is also a corporation, partnership or other entity created or organized under foreign law, or with its principal place of business outside the United States.

3. Which programs are covered

The rule applies to three kinds of recipient (22 U.S.C. 2798(a)(2)). The first is any country the President determines has, at any time after 1 January 1980, used chemical or biological weapons in violation of international law (22 U.S.C. 2798(a)(2)(A)). It also covers a country that has used lethal chemical or biological weapons against its own nationals, or made substantial preparations to do either. The second is any country whose government has been determined, under the Export Administration Act, to have repeatedly supported acts of international terrorism (22 U.S.C. 2798(a)(2)(B)). The third is any other country, project or entity the President designates for the section (22 U.S.C. 2798(a)(2)(C)). That designation power lets the rule reach projects and entities as well as whole countries.

4. Who else is caught

Sanctions fall on more than the person named in the determination (22 U.S.C. 2798(a)(3)). They also apply to any successor entity. A parent or subsidiary is caught if it knowingly assisted in the activities behind the determination. An affiliate is caught if it knowingly assisted and is controlled in fact by the named foreign person. Related rules for missile technology are covered in missile sanctions on foreign persons.

5. Consultation first

Congress urges the President to begin consultations at once with the government that has primary jurisdiction over the foreign person (22 U.S.C. 2798(b)(1)). To pursue them, the President may delay sanctions for up to 90 days (22 U.S.C. 2798(b)(2)). After the consultations, sanctions must be imposed unless the President certifies to Congress that the government has taken specific and effective actions, including appropriate penalties, to end the person’s involvement. If the government is in the process of taking such actions, the President may certify that and delay for a further 90 days. Taken together, the two delays can hold sanctions back for up to 180 days while the other government acts.

Within 90 days after a determination, the President must report to Congress on the status of the consultations (22 U.S.C. 2798(b)(3)). The report also covers the basis for any finding that the government has taken specific corrective actions.

6. The two sanctions

Both sanctions are mandatory once the determination is made, subject to the consultation delay and the exceptions below (22 U.S.C. 2798(a)(1)). The first is a procurement sanction (22 U.S.C. 2798(c)(1)(A)). The government may not buy, or contract to buy, any goods or services from any sanctioned person. The second is an import sanction (22 U.S.C. 2798(c)(1)(B)). Products made by any sanctioned person may not be imported into the United States.

7. Exceptions

The President need not apply or keep the sanctions in five sets of cases (22 U.S.C. 2798(c)(2)). The first concerns defense articles and services (22 U.S.C. 2798(c)(2)(A)). It covers existing contracts or subcontracts, including options for production quantities to meet American operational military requirements. It also covers cases where the President determines that a sole source supplier provides essential defense articles or services with no readily or reasonably available alternative. The same applies where the President determines items are essential to national security under defense coproduction agreements.

The others cover contracts made before the President publishes the intention to impose sanctions (22 U.S.C. 2798(c)(2)(B)). They cover spare parts, component parts essential to American products or production but not finished products, and routine servicing and maintenance where alternatives are not readily available (22 U.S.C. 2798(c)(2)(C)). Information and technology essential to American products or production are excepted (22 U.S.C. 2798(c)(2)(D)). So are medical or other humanitarian items (22 U.S.C. 2798(c)(2)(E)).

8. How long sanctions last

Sanctions apply for at least 12 months (22 U.S.C. 2798(d)). After that they end only if the President certifies to Congress that reliable information shows the person has stopped aiding or abetting any foreign government, project or entity in acquiring a chemical or biological weapons capability.

The President may also waive a sanction after its first 12 months, on certifying to Congress that the waiver is important to national security interests (22 U.S.C. 2798(e)(1)). Congress must be notified at least 20 days before the waiver takes effect (22 U.S.C. 2798(e)(2)). The notice must include a report fully setting out the rationale and circumstances. The two exits differ. Ending a sanction needs reliable information that the conduct has stopped, while a waiver needs a national security finding instead. Neither can take effect within the first 12 months.

Key terms

Material contribution	Knowing help, through exports or other transactions, to a covered weapons program.
Procurement sanction	A bar on government purchases from a sanctioned person.
Import sanction	A bar on importing products made by a sanctioned person.
Consultation delay	Up to 90 days, extendable once, to let the home government act.
Minimum period	The 12 months a sanction must run before it can end or be waived.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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