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pdf§ 2734a
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
ployed to carry out reconstruction and stabilization activities pursuant to section 2734 of this
title (as added by section 1605 1 of this title), the
benefits or privileges set forth in sections 3973,
4024, and 4081 of this title to the same extent and
manner that such benefits and privileges are extended to members of the Foreign Service.
(b) Authority regarding details
The Secretary is authorized to accept details
or assignments of any personnel, and any employee of a State or local government, on a
reimbursable or nonreimbursable basis for the
purpose of carrying out this title,1 and the head
of any agency is authorized to detail or assign
personnel of such agency on a reimbursable or
nonreimbursable basis to the Department of
State for purposes of section 2734 of this title, as
added by section 1605 1 of this title.
(Pub. L. 110–417, [div. A], title XVI, § 1606, Oct. 14,
2008, 122 Stat. 4656.)
REFERENCES IN TEXT
Section 1605 of this title, referred to in text, means
section 1605 of title XVI of Pub. L. 110–417.
This title, the first time appearing in subsec. (b),
means title XVI of Pub. L. 110–417, [div. A], Oct. 14, 2008,
122 Stat. 4652, known as the Reconstruction and Stabilization Civilian Management Act of 2008, which enacted this section, sections 2368 and 2734 of this title,
and provisions set out as notes under this section and
sections 2151 and 2368 of this title. For complete classification of this title to the Code, see Short Title of 2008
Amendment note set out under section 2151 of this title
and Tables.
Sec.
2754.
2756.
SUBCHAPTER II—FOREIGN MILITARY SALES
AUTHORIZATIONS
2761.
2762.
2763.
2764.
2765.
2766.
2767.
2767a, 2768.
2769.
2770.
2752.
2753.
1 See
Need for international defense cooperation and military export controls;
Presidential waiver; report to Congress; arms sales policy.
Coordination with foreign policy.
Eligibility for defense services or defense
articles.
References in Text note below.
General authority.
SUBCHAPTER II–C—EXCHANGE OF TRAINING AND
RELATED SUPPORT
2770a.
Exchange of training and related support.
SUBCHAPTER III—MILITARY EXPORT CONTROLS
2772.
2773.
2751.
Foreign military construction sales.
SUBCHAPTER II–B—SALES TO UNITED STATES
COMPANIES FOR INCORPORATION INTO END
ITEMS
Pub. L. 110–417, [div. A], title XVI, § 1603, Oct. 14, 2008,
122 Stat. 4653, provided that: ‘‘In this title [enacting
this section, sections 2368 and 2734 of this title, and provisions set out as notes under sections 2151 and 2368 of
this title]:
‘‘(1) ADMINISTRATOR.—The term ‘Administrator’
means the Administrator of the United States Agency for International Development.
‘‘(2) AGENCY.—The term ‘agency’ means any entity
included in chapter 1 of title 5, United States Code.
‘‘(3) APPROPRIATE CONGRESSIONAL COMMITTEES.—The
term ‘appropriate congressional committees’ means
the Committee on Foreign Affairs of the House of
Representatives and the Committee on Foreign Relations of the Senate.
‘‘(4) DEPARTMENT.—Except as otherwise provided in
this title, the term ‘Department’ means the Department of State.
‘‘(5) PERSONNEL.—The term ‘personnel’ means individuals serving in any service described in section
2101 of title 5, United States Code, other than in the
legislative or judicial branch.
‘‘(6) SECRETARY.—The term ‘Secretary’ means the
Secretary of State.’’
Sec.
Sales from stocks.
Procurement for cash sales.
Credit sales.
Guaranties.
Annual estimate and justification for
sales program.
Security assistance surveys.
Authority of President to enter into cooperative projects with friendly foreign countries.
Repealed.
SUBCHAPTER II–A—FOREIGN MILITARY
CONSTRUCTION SALES
2771.
SUBCHAPTER I—FOREIGN AND NATIONAL SECURITY POLICY OBJECTIVES AND RESTRAINTS
Purposes for which military sales or
leases by the United States are authorized; report to Congress.
Discrimination prohibited if based on
race, religion, national origin, or sex.
Foreign intimidation and harassment of
individuals in United States.
2755.
DEFINITIONS
CHAPTER 39—ARMS EXPORT CONTROL
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2774.
2775.
2776.
2776a.
2777.
2778.
2778a.
2779.
2779a.
2780.
2781.
Military sales authorizations and ceilings.
Repealed.
Restraint in arms sales to Sub-Saharan
Africa.
Foreign military sales credit standards.
Foreign military sales to less developed
countries.
Reports and certifications to Congress
on military exports.
Repealed.
Fiscal provisions relating to foreign
military sales credits.
Control of arms exports and imports.
Exportation of uranium depleted in the
isotope 235.
Fees of military sales agents.
Prohibition on incentive payments.
Transactions with countries supporting
acts of international terrorism.
Transactions with countries not fully cooperating with United States antiterrorism efforts.
SUBCHAPTER III–A—END-USE MONITORING OF
DEFENSE ARTICLES AND DEFENSE SERVICES
2785.
End-use monitoring of defense articles
and defense services.
SUBCHAPTER IV—GENERAL, ADMINISTRATIVE,
AND MISCELLANEOUS PROVISIONS
2791.
2792.
2793.
2794.
General provisions.
Administrative expenses.
Other provisions unaffected.
Definitions.
SUBCHAPTER V—SPECIAL DEFENSE ACQUISITION
FUND
2795.
2795a.
Fund.
Use and transfer of items procured by
Fund.
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
Sec.
2795b.
Repealed.
SUBCHAPTER VI—LEASES OF DEFENSE ARTICLES AND LOAN AUTHORITY FOR COOPERATIVE RESEARCH AND DEVELOPMENT PURPOSES
2796.
2796a.
2796b.
2796c.
2796d.
Leasing authority.
Reports to Congress.
Legislative review procedures.
Applicability of other statutory provisions.
Loan of materials, supplies, and equipment for research and development
purposes.
SUBCHAPTER VII—CONTROL OF MISSILES AND
MISSILE EQUIPMENT OR TECHNOLOGY
2797.
2797a.
2797b.
2797b–1.
2797b–2.
2797c.
Licensing.
Denial of transfer of missile equipment
or technology by United States persons.
Transfers of missile equipment or technology by foreign persons.
Notification of admittance of MTCR adherents.
Authority relating to MTCR adherents.
Definitions.
SUBCHAPTER VIII—CHEMICAL OR BIOLOGICAL
WEAPONS PROLIFERATION
2798.
Sanctions against certain foreign persons.
SUBCHAPTER IX—TRANSFER OF CERTAIN CFE
TREATY-LIMITED EQUIPMENT TO NATO MEMBERS
2799.
2799a.
2799b.
2799c.
2799d.
Purpose.
CFE Treaty obligations.
Authorities.
Notifications and reports to Congress.
Definitions.
SUBCHAPTER X—NUCLEAR NONPROLIFERATION
CONTROLS
2799aa.
2799aa–1.
2799aa–2.
Nuclear enrichment transfers.
Nuclear reprocessing transfers, illegal
exports for nuclear explosive devices,
transfers of nuclear explosive devices,
and nuclear detonations.
‘‘Nuclear explosive device’’ defined.
SUBCHAPTER I—FOREIGN AND NATIONAL
SECURITY POLICY OBJECTIVES AND RESTRAINTS
§ 2751. Need for international defense cooperation and military export controls; Presidential waiver; report to Congress; arms
sales policy
As declared by the Congress in the Arms Control and Disarmament Act [22 U.S.C. 2551 et
seq.], an ultimate goal of the United States continues to be a world which is free from the
scourge of war and the dangers and burdens of
armaments; in which the use of force has been
subordinated to the rule of law; and in which
international adjustments to a changing world
are achieved peacefully. In furtherance of that
goal, it remains the policy of the United States
to encourage regional arms control and disarmament agreements and to discourage arms races.
The Congress recognizes, however, that the
United States and other free and independent
countries continue to have valid requirements
for effective and mutually beneficial defense relationships in order to maintain and foster the
§ 2751
environment of international peace and security
essential to social, economic, and political
progress. Because of the growing cost and complexity of defense equipment, it is increasingly
difficult and uneconomic for any country, particularly a developing country, to fill all of its
legitimate defense requirements from its own
design and production base. The need for international defense cooperation among the United
States and those friendly countries to which it
is allied by mutual defense treaties is especially
important, since the effectiveness of their armed
forces to act in concert to deter or defeat aggression is directly related to the operational
compatibility of their defense equipment.
Accordingly, it remains the policy of the
United States to facilitate the common defense
by entering into international arrangements
with friendly countries which further the objective of applying agreed resources of each country to programs and projects of cooperative exchange of data, research, development, production, procurement, and logistics support to
achieve specific national defense requirements
and objectives of mutual concern. To this end,
this chapter authorizes sales by the United
States Government to friendly countries having
sufficient wealth to maintain and equip their
own military forces at adequate strength, or to
assume progressively larger shares of the costs
thereof, without undue burden to their economies, in accordance with the restraints and control measures specified herein and in furtherance of the security objectives of the United
States and of the purposes and principles of the
United Nations Charter.
It is the sense of the Congress that all such
sales be approved only when they are consistent
with the foreign policy interests of the United
States, the purposes of the foreign assistance
program of the United States as embodied in the
Foreign Assistance Act of 1961, as amended [22
U.S.C. 2151 et seq.], the extent and character of
the military requirement, and the economic and
financial capability of the recipient country,
with particular regard being given, where appropriate, to proper balance among such sales,
grant military assistance, and economic assistance as well as to the impact of the sales on programs of social and economic development and
on existing or incipient arms races.
It shall be the policy of the United States to
exert leadership in the world community to
bring about arrangements for reducing the
international trade in implements of war and to
lessen the danger of outbreak of regional conflict and the burdens of armaments. United
States programs for or procedures governing the
export, sale, and grant of defense articles and
defense services to foreign countries and international organizations shall be administered in
a manner which will carry out this policy.
It is the sense of the Congress that the President should seek to initiate multilateral discussions for the purpose of reaching agreements
among the principal arms suppliers and arms
purchasers and other countries with respect to
the control of the international trade in armaments. It is further the sense of Congress that
the President should work actively with all nations to check and control the international sale
§ 2751
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
and distribution of conventional weapons of
death and destruction and to encourage regional
arms control arrangements. In furtherance of
this policy, the President should undertake a
concerted effort to convene an international
conference of major arms-supplying and armspurchasing nations which shall consider measures to limit conventional arms transfers in the
interest of international peace and stability.
It is the sense of the Congress that the aggregate value of defense articles and defense services—
(1) which are sold under section 2761 or section 2762 of this title; or
(2) which are licensed or approved for export
under section 2778 of this title to, for the use,
or for benefit of the armed forces, police, intelligence, or other internal security forces of a
foreign country or international organization
under a commercial sales contract;
in any fiscal year should not exceed current levels.
It is the sense of the Congress that the President maintain adherence to a policy of restraint
in conventional arms transfers and that, in implementing this policy worldwide, a balanced approach should be taken and full regard given to
the security interests of the United States in all
regions of the world and that particular attention should be paid to controlling the flow of
conventional arms to the nations of the developing world. To this end, the President is encouraged to continue discussions with other arms
suppliers in order to restrain the flow of conventional arms to less developed countries.
(Pub. L. 90–629, ch. 1, § 1, Oct. 22, 1968, 82 Stat.
1321; Pub. L. 91–672, § 4, Jan. 12, 1971, 84 Stat. 2053;
Pub. L. 93–189, § 25(1), Dec. 17, 1973, 87 Stat. 729;
Pub. L. 94–329, title II, § 202, formerly § 202(a),
June 30, 1976, 90 Stat. 734, renumbered and
amended Pub. L. 95–384, §§ 15(a), 29(c)(1)(A), Sept.
26, 1978, 92 Stat. 739, 747; Pub. L. 97–113, title VII,
§ 734(a)(10), Dec. 29, 1981, 95 Stat. 1560.)
REFERENCES IN TEXT
The Arms Control and Disarmament Act, referred to
in text, is Pub. L. 87–297, Sept. 26, 1961, 75 Stat. 631, as
amended, which is classified generally to chapter 35
(§ 2551 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 2551 of this title, and Tables.
This chapter, referred to in text, 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 below and Tables.
The Foreign Assistance Act of 1961, as amended, referred to in text, is Pub. L. 87–195, Sept. 4, 1961, 75 Stat.
424, as amended, which is classified principally to chapter 32 (§ 2151 et seq.) 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.
REFERENCES TO FOREIGN MILITARY SALES ACT DEEMED
REFERENCE TO ARMS EXPORT CONTROL ACT
Section 201(b) of Pub. L. 94–329 provided that: ‘‘Any
reference to the Foreign Military Sales Act [see Short
Title note below] shall be deemed to be a reference to
the Arms Export Control Act.’’
REFERENCES TO PRESENT INSTEAD OF PAST PROVISIONS; SPECIFIC APPLICATION OF OTHER PROVISIONS
TO THIS CHAPTER
Section 45(c) of Pub. L. 90–629 provided that: ‘‘References in law to the provisions of law repealed by sub-
Page 974
section (a) of this section [repealing sections 2341 to
2343, 2344(b)(3), 2345, 2394(g), and 2399a of this title] shall
hereafter [on and after Oct. 22, 1968] be deemed to be
references to this Act [this chapter] or appropriate provisions of this Act. Except for the laws specified in section 44 [section 2793 of this title], no other provision of
law shall be deemed to apply to this Act unless it refers
specifically to this Act or refers generally to sales of
defense articles and defense services under any Act.’’
AMENDMENTS
1981—Pub. L. 97–113 struck out paragraph which provided that it was the sense of Congress that sales and
guaranties under sections 2761, 2762, 2763, and 2764 of
this title not be approved where they would have had
the effect of arming military dictators who were denying the growth of fundamental rights or social progress
to their own people but allowing the President to waive
this limitation when he determined it would be important to the security of the United States, and promptly
so reported to the Speaker of the House of Representatives and the Committee on Foreign Relations in the
Senate.
1978—Pub. L. 95–384, § 15(a), inserted paragraph relating to adherence to a policy of restraint in conventional arms transfer.
1976—Pub. L. 94–329 substituted in last paragraph provision relating to a new statement of policy whereby
the United States shall exert leadership in the reduction of international trade in arms, and in that regard,
the President to initiate discussions and actively work
with other nations with a view towards control of
international trade in arms, for provisions relating to
a reduction in the role of the United States in furnishing of defense articles and defense services to foreign
countries and international organizations by decreasing sales, credit sales and guarantees of such articles
and services.
1973—Pub. L. 93–189 inserted last paragraph relating
to a reduction by the United States in the furnishing of
defense articles and defense services to foreign countries.
1971—Pub. L. 91–672 substituted ‘‘denying the growth
of fundamental rights or social progress’’ for ‘‘denying
social progress’’ in last par.
EFFECTIVE DATE
Section 41 of Pub. L. 90–629 provided that: ‘‘This Act
[enacting this chapter, amending sections 2344, 2382,
2392, 2394, and 2403 of this title, repealing sections 2341
to 2343, 2345, and 2399a of this title, and enacting provisions set out as notes under this section and section
2341 of this title] shall take effect on July 1, 1968.’’
SHORT TITLE OF 2010 AMENDMENT
Pub. L. 111–266, § 1, Oct. 8, 2010, 124 Stat. 2797, provided
that: ‘‘This Act [amending sections 2321h, 2753, 2755,
2761, 2765, 2776, 2778, 2779, 2779a, 2796a, and 2796b of this
title and enacting provisions set out as notes under
this section and section 2778 of this title] may be cited
as the ‘Security Cooperation Act of 2010’.’’
Pub. L. 111–266, title I, § 101, Oct. 8, 2010, 124 Stat. 2797,
provided that: ‘‘This title [amending sections 2753, 2755,
2765, 2776, 2778, 2779, and 2779a of this title and enacting
provisions set out as notes under section 2778 of this
title] may be cited as the ‘Defense Trade Cooperation
Treaties Implementation Act of 2010’.’’
SHORT TITLE OF 1999 AMENDMENT
Pub. L. 106–113, div. B, § 1000(a)(7) [div. B, § 1001], Nov.
29, 1999, 113 Stat. 1536, 1501A–485, provided that: ‘‘This
division [div. B of H.R. 3427 as enacted by section
1000(a)(7) of Pub. L. 106–113, see Tables for classification] may be cited as the ‘Arms Control, Nonproliferation, and Security Assistance Act of 1999’.’’
SHORT TITLE OF 1998 AMENDMENT
Pub. L. 105–194, § 1, July 14, 1998, 112 Stat. 627, provided that: ‘‘This Act [amending section 2799aa–1 of
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
this title and enacting provisions set out as notes
under section 2799aa–1 of this title] may be cited as the
‘Agriculture Export Relief Act of 1998’.’’
SHORT TITLE OF 1991 AMENDMENT
Pub. L. 102–228, § 1, Dec. 12, 1991, 105 Stat. 1691, provided that: ‘‘This Act [enacting sections 2595b–1 and
2799 to 2799d of this title, amending sections 2581, 2589,
2595, and 2595c of this title, and enacting provisions set
out as notes under section 2551 of this title] may be
cited as the ‘Conventional Forces in Europe Treaty Implementation Act of 1991’.’’
SHORT TITLE
Pub. L. 90–629, as amended by section 201(a) of Pub. L.
94–329, provided: ‘‘That this Act [enacting this chapter,
amending sections 2382, 2392, 2394, and 2403 of this title,
repealing sections 2341 to 2343, 2344, 2345, 2394, and 2399
of this title, and enacting provisions set out as notes
under this section and section 2341 of this title] may be
cited as the ‘Arms Export Control Act’.’’
REGISTRATION AND END-USE MONITORING OF DEFENSE
ARTICLES AND DEFENSE SERVICES TRANSFERRED TO
AFGHANISTAN AND PAKISTAN
Pub. L. 111–84, div. A, title XII, § 1225, Oct. 28, 2009, 123
Stat. 2523, provided that:
‘‘(a) PROGRAM REQUIRED.—
‘‘(1) IN GENERAL.—The Secretary of Defense shall establish and carry out a program to provide for the
registration and end-use monitoring of defense articles and defense services transferred to Afghanistan
and Pakistan in accordance with the requirements
under subsection (b) and to prohibit the retransfer of
such defense articles and defense services without the
consent of the United States. The program required
under this subsection shall be limited to the transfer
of defense articles and defense services—
‘‘(A) pursuant to authorities other than the Arms
Export Control Act [22 U.S.C. 2751 et seq.] or the
Foreign Assistance Act of 1961 [22 U.S.C. 2151 et
seq.]; and
‘‘(B) using funds made available to the Department of Defense, including funds available pursuant
to the Pakistan Counterinsurgency Fund.
‘‘(2) PROHIBITION.—No defense articles or defense
services that would be subject to the program required under this subsection may be transferred to—
‘‘(A) the Government of Afghanistan or any other
group, organization, citizen, or resident of Afghanistan, or
‘‘(B) the Government of Pakistan or any other
group, organization, citizen, or resident of Pakistan,
until the Secretary of Defense certifies to the specified congressional committees that the program required under this subsection has been established.
‘‘(b) REGISTRATION AND END-USE MONITORING REQUIREMENTS.—The registration and end-use monitoring requirements under this subsection shall include the following:
‘‘(1) A detailed record of the origin, shipping, and
distribution of defense articles and defense services
transferred to—
‘‘(A) the Government of Afghanistan and other
groups, organizations, citizens, and residents of Afghanistan; and
‘‘(B) the Government of Pakistan and other
groups, organizations, citizens, and residents of
Pakistan.
‘‘(2) The registration of the serial numbers of all
small arms to be provided to—
‘‘(A) the Government of Afghanistan and other
groups, organizations, citizens, and residents of Afghanistan; and
‘‘(B) the Government of Pakistan and other
groups, organizations, citizens, and residents of
Pakistan.
‘‘(3) A program of end-use monitoring of lethal defense articles and defense services transferred to the
§ 2751
entities and individuals described in subparagraphs
(A) and (B) of paragraph (1).
‘‘(c) REVIEW; EXEMPTION.—
‘‘(1) REVIEW.—The Secretary of Defense shall periodically review the defense articles and defense services subject to the registration and end-use monitoring requirements under subsection (b) to determine
which defense articles and defense services, if any,
should no longer be subject to such registration and
end-use monitoring requirements. The Secretary of
Defense shall submit to the specified congressional
committees the results of each review conducted
under this paragraph.
‘‘(2) EXEMPTION.—The Secretary of Defense may exempt a defense article or defense service from the
registration and end-use monitoring requirements
under subsection (b) beginning on the date that is 30
days after the date on which the Secretary provides
notice of the proposed exemption to the specified congressional committees. Such notice shall describe
any controls to be imposed on such defense article or
defense service, as the case may be, under any other
provision of law.
‘‘(d) DEFINITIONS.—In this section:
‘‘(1) DEFENSE ARTICLE.—The term ‘defense article’
has the meaning given the term in section 644(d) of
the Foreign Assistance Act of 1961 (22 U.S.C. 2403(d)).
‘‘(2) DEFENSE SERVICE.—The term ‘defense service’
has the meaning given the term in section 644(f) of
the Foreign Assistance Act of 1961 (22 U.S.C. 2403(f)).
‘‘(3) SMALL ARM.—The term ‘small arm’ means—
‘‘(A) a handgun or pistol;
‘‘(B) a shoulder-fired weapon, including a sub-carbine, carbine, or rifle;
‘‘(C) a light, medium, or heavy automatic weapon
up to and including a .50 caliber machine gun;
‘‘(D) a recoilless rifle up to and including 106mm;
‘‘(E) a mortar up to and including 81mm;
‘‘(F) a rocket launcher, man-portable;
‘‘(G) a grenade launcher, rifle and shoulder fired;
and
‘‘(H) an individually-operated weapon which is
portable or can be fired without special mounts or
firing devices and which has potential use in civil
disturbances and is vulnerable to theft.
‘‘(4) SPECIFIED CONGRESSIONAL COMMITTEES.—The
term ‘specified congressional committees’ means—
‘‘(A) the Committee on Foreign Affairs and the
Committee on Armed Services of the House of Representatives; and
‘‘(B) the Committee on Foreign Relations and the
Committee on Armed Services of the Senate.
‘‘(e) EFFECTIVE DATE.—
‘‘(1) IN GENERAL.—Except as provided in paragraph
(2), this section shall take effect 180 days after the
date of the enactment of this Act [Oct. 28, 2009].
‘‘(2) EXCEPTION.—The Secretary of Defense may
delay the effective date of this section by an additional period of up to 120 days if the Secretary certifies in writing to the specified congressional committees for such additional period that it is in the
vital interest of the United States to do so and includes in the certification a description of such vital
interest.’’
TRACKING AND MONITORING OF DEFENSE ARTICLES PROVIDED TO THE GOVERNMENT OF IRAQ AND OTHER INDIVIDUALS AND GROUPS IN IRAQ
Pub. L. 110–181, div. A, title XII, § 1228, Jan. 28, 2008,
122 Stat. 377, provided that:
‘‘(a) EXPORT AND TRANSFER CONTROL POLICY.—The
President shall implement a policy to control the export and transfer of defense articles into Iraq, including
implementation of the registration and monitoring system under subsection (c).
‘‘(b) REQUIREMENT TO IMPLEMENT CONTROL SYSTEM.—
No defense articles may be provided to the Government
of Iraq or any other group, organization, citizen, or
resident of Iraq until the President certifies to the
specified congressional committees that a registration
§ 2751
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
and monitoring system meeting the requirements set
forth in subsection (c) has been established.
‘‘(c) REGISTRATION AND MONITORING SYSTEM.—The
registration and monitoring system required under this
subsection shall include—
‘‘(1) the registration of the serial numbers of all
small arms to be provided to the Government of Iraq
or to other groups, organizations, citizens, or residents of Iraq;
‘‘(2) a program of end-use monitoring of all lethal
defense articles provided to such entities or individuals; and
‘‘(3) a detailed record of the origin, shipping, and
distribution of all defense articles transferred under
the Iraq Security Forces Fund or any other security
assistance program to such entities or individuals.
‘‘(d) REVIEW; EXEMPTION.—
‘‘(1) REVIEW.—The President shall periodically review the items subject to the registration and monitoring requirements under subsection (c) to determine what items, if any, should no longer be subject
to such registration and monitoring requirements.
The President shall transmit to the specified congressional committees the results of each review conducted under this paragraph.
‘‘(2) EXEMPTION.—The President may exempt an
item from the registration and monitoring requirements under subsection (c) beginning on the date
that is 30 days after the date on which the President
provides notice of the proposed exemption to the
specified congressional committees in accordance
with the procedures applicable to reprogramming notifications under section 634A(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2394–1(a)). Such notice
shall describe any controls to be imposed on such
item under any other provision of law.
‘‘(e) DEFINITIONS.—In this section:
‘‘(1) DEFENSE ARTICLE.—The term ‘defense article’
has the meaning given the term in section 644(d) of
the Foreign Assistance Act of 1961 (22 U.S.C. 2403(d)).
‘‘(2) SMALL ARMS.—The term ‘small arms’ means—
‘‘(A) handguns;
‘‘(B) shoulder-fired weapons;
‘‘(C) light automatic weapons up to and including
.50 caliber machine guns;
‘‘(D) recoilless rifles up to and including 106mm;
‘‘(E) mortars up to and including 81mm;
‘‘(F) rocket launchers, man-portable;
‘‘(G) grenade launchers, rifle and shoulder fired;
and
‘‘(H) individually-operated weapons which are
portable or can be fired without special mounts or
firing devices and which have potential use in civil
disturbances and are vulnerable to theft.
‘‘(3) SPECIFIED CONGRESSIONAL COMMITTEES.—The
term ‘specified congressional committees’ means—
‘‘(A) the Committee on Foreign Affairs and the
Committee on Armed Services of the House of Representatives; and
‘‘(B) the Committee on Foreign Relations, the
Committee on Armed Services, and the Committee
on Banking, Housing, and Urban Affairs of the Senate.
‘‘(f) EFFECTIVE DATE.—
‘‘(1) IN GENERAL.—Except as provided in paragraph
(2), this section shall take effect 180 days after the
date of the enactment of this Act [Jan. 28, 2008].
‘‘(2) EXCEPTION.—The President may delay the effective date of this section by an additional period of
up to 90 days if the President certifies in writing to
the specified congressional committees for such additional period that it is in the vital interest of the
United States to do so and includes in the certification a description of such vital interest.’’
MAN-PORTABLE AIR DEFENSE SYSTEMS (MANPADS)
Pub. L. 109–472, § 12, Jan. 11, 2007, 120 Stat. 3558, provided that:
‘‘(a) STATEMENT OF POLICY.—Congress declares that it
should be the policy of the United States to hold for-
Page 976
eign governments accountable for knowingly transferring MANPADS to state-sponsors of terrorism or terrorist organizations.
‘‘(b) DETERMINATION RELATING TO SANCTIONS.—
‘‘(1) IN GENERAL.—If the President determines that
a foreign government knowingly transfers MANPADS
to a foreign government described in paragraph (2) or
a terrorist organization, the President shall—
‘‘(A) submit forthwith to the Committee on International Relations [now Committee on Foreign Affairs] of the House of Representatives and the Committee on Foreign Relations of the Senate a report
containing such determination; and
‘‘(B) impose forthwith on the transferring foreign
government the sanctions described in subsection
(c).
‘‘(2) FOREIGN GOVERNMENT DESCRIBED.—A foreign
government described in this paragraph is a foreign
government that the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979 [50 U.S.C. App. 2405(j)], section 620A of the Foreign Assistance Act of 1961 [22
U.S.C. 2371], section 40 of the Arms Export Control
Act [22 U.S.C. 2780], or any other provision of law, is
a government that has repeatedly provided support
for acts of international terrorism.
‘‘(c) SANCTIONS DESCRIBED.—The sanctions referred to
in subsection (b)(1)(B) are the following:
‘‘(1) Termination of United States Government assistance to the transferring foreign government
under the Foreign Assistance Act of 1961 [22 U.S.C.
2151 et seq.], except that such termination shall not
apply in the case of humanitarian assistance.
‘‘(2) Termination of United States Government—
‘‘(A) sales to the transferring foreign government
of any defense articles, defense services, or design
and construction services; and
‘‘(B) licenses for the export to the transferring
foreign government of any item on the United
States Munitions List.
‘‘(3) Termination of all foreign military financing
for the transferring foreign government.
‘‘(d) WAIVER.—Notwithstanding any other provision
of law, sanctions shall not be imposed on a transferring
foreign government under this section if the President
determines and certifies in writing to the Committee
on International Relations [now Committee on Foreign
Affairs] of the House of Representatives and the Committee on Foreign Relations of the Senate that the furnishing of the assistance, sales, licensing, or financing
that would otherwise be suspended as a result of the
imposition of such sanctions is important to the national security interests of the United States.
‘‘(e) DEFINITIONS.—In this section:
‘‘(1) DEFENSE ARTICLE.—The term ‘defense article’
has the meaning given the term in section 47(3) of the
Arms Export Control Act [22 U.S.C. 2794(3)].
‘‘(2) DEFENSE SERVICE.—The term ‘defense service’
has the meaning given the term in section 47(4) of the
Arms Export Control Act [22 U.S.C. 2794(4)].
‘‘(3) DESIGN AND CONSTRUCTION SERVICES.—The term
‘design and construction services’ has the meaning
given the term in section 47(8) of the Arms Export
Control Act [22 U.S.C. 2794(8)].
‘‘(4) FOREIGN GOVERNMENT.—The term ‘foreign government’ includes any agency or instrumentality of a
foreign government.
‘‘(5) MANPADS.—The term ‘MANPADS’ means—
‘‘(A) a surface-to-air missile system designed to
be man-portable and carried and fired by a single
individual; or
‘‘(B) any other surface-to-air missile system designed to be operated and fired by more than one
individual acting as a crew and portable by several
individuals.’’
Pub. L. 108–458, title IV, § 4026, Dec. 17, 2004, 118 Stat.
3724, provided that:
‘‘(a) UNITED STATES POLICY ON NONPROLIFERATION AND
EXPORT CONTROL.—
‘‘(1) TO LIMIT AVAILABILITY AND TRANSFER OF
MANPADS.—The President shall pursue, on an urgent
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
basis, further strong international diplomatic and cooperative efforts, including bilateral and multilateral
treaties, in the appropriate forum to limit the availability, transfer, and proliferation of MANPADSs
worldwide.
‘‘(2) TO LIMIT THE PROLIFERATION OF MANPADS.—The
President is encouraged to seek to enter into agreements with the governments of foreign countries
that, at a minimum, would—
‘‘(A) prohibit the entry into force of a MANPADS
manufacturing license agreement and MANPADS
co-production agreement, other than the entry into
force of a manufacturing license or co-production
agreement with a country that is party to such an
agreement;
‘‘(B) prohibit, except pursuant to transfers between governments, the export of a MANPADS, including any component, part, accessory, or attachment thereof, without an individual validated license; and
‘‘(C) prohibit the reexport or retransfer of a
MANPADS, including any component, part, accessory, or attachment thereof, to a third person, organization, or government unless the written consent of the government that approved the original
export or transfer is first obtained.
‘‘(3) TO ACHIEVE DESTRUCTION OF MANPADS.—The
President should continue to pursue further strong
international diplomatic and cooperative efforts, including bilateral and multilateral treaties, in the appropriate forum to assure the destruction of excess,
obsolete, and illicit stocks of MANPADSs worldwide.
‘‘(4) REPORTING AND BRIEFING REQUIREMENT.—
‘‘(A) PRESIDENT’S REPORT.—Not later than 180
days after the date of enactment of this Act [Dec.
17, 2004], the President shall transmit to the appropriate congressional committees a report that contains a detailed description of the status of diplomatic efforts under paragraphs (1), (2), and (3) and
of efforts by the appropriate United States agencies
to comply with the recommendations of the General Accounting Office [now Government Accountability Office] set forth in its report GAO–04–519,
entitled ‘Nonproliferation: Further Improvements
Needed in U.S. Efforts to Counter Threats from
Man-Portable Air Defense Systems’.
‘‘(B) ANNUAL BRIEFINGS.—Annually after the date
of submission of the report under subparagraph (A)
and until completion of the diplomatic and compliance efforts referred to in subparagraph (A), the
Secretary of State shall brief the appropriate congressional committees on the status of such efforts.
‘‘(b) FAA AIRWORTHINESS CERTIFICATION OF MISSILE
DEFENSE SYSTEMS FOR COMMERCIAL AIRCRAFT.—
‘‘(1) IN GENERAL.—As soon as practicable, but not
later than the date of completion of Phase II of the
Department of Homeland Security’s counter-manportable air defense system (MANPADS) development
and demonstration program, the Administrator of the
Federal Aviation Administration shall establish a
process for conducting airworthiness and safety certification of missile defense systems for commercial
aircraft certified as effective and functional by the
Department of Homeland Security. The process shall
require a certification by the Administrator that
such systems can be safely integrated into aircraft
systems and ensure airworthiness and aircraft system
integrity.
‘‘(2) CERTIFICATION ACCEPTANCE.—Under the process,
the Administrator shall accept the certification of
the Department of Homeland Security that a missile
defense system is effective and functional to defend
commercial aircraft against MANPADSs.
‘‘(3) EXPEDITIOUS CERTIFICATION.—Under the process, the Administrator shall expedite the airworthiness and safety certification of missile defense systems for commercial aircraft certified by the Department of Homeland Security.
‘‘(4) REPORTS.—Not later than 90 days after the first
airworthiness and safety certification for a missile
§ 2751
defense system for commercial aircraft is issued by
the Administrator, and annually thereafter until December 31, 2008, the Federal Aviation Administration
shall transmit to the Committee on Transportation
and Infrastructure of the House of Representatives
and the Committee on Commerce, Science, and
Transportation of the Senate a report that contains
a detailed description of each airworthiness and safety certification issued for a missile defense system
for commercial aircraft.
‘‘(c) PROGRAMS TO REDUCE MANPADS.—
‘‘(1) IN GENERAL.—The President is encouraged to
pursue strong programs to reduce the number of
MANPADSs worldwide so that fewer MANPADSs will
be available for trade, proliferation, and sale.
‘‘(2) REPORTING AND BRIEFING REQUIREMENTS.—Not
later than 180 days after the date of enactment of this
Act [Dec. 17, 2004], the President shall transmit to the
appropriate congressional committees a report that
contains a detailed description of the status of the
programs being pursued under subsection (a). Annually thereafter until the programs are no longer needed, the Secretary of State shall brief the appropriate
congressional committees on the status of programs.
‘‘(3) FUNDING.—There is authorized to be appropriated such sums as may be necessary to carry out
this section.
‘‘(d) MANPADS VULNERABILITY ASSESSMENTS REPORT.—
‘‘(1) IN GENERAL.—Not later than one year after the
date of enactment of this Act [Dec. 17, 2004], the Secretary of Homeland Security shall transmit to the
Committee on Transportation and Infrastructure of
the House of Representatives and the Committee on
Commerce, Science, and Transportation of the Senate a report describing the Department of Homeland
Security’s plans to secure airports and the aircraft
arriving and departing from airports against
MANPADSs attacks.
‘‘(2) MATTERS TO BE ADDRESSED.—The Secretary’s
report shall address, at a minimum, the following:
‘‘(A) The status of the Department’s efforts to
conduct MANPADSs vulnerability assessments at
United States airports at which the Department is
conducting assessments.
‘‘(B) How intelligence is shared between the
United States intelligence agencies and Federal,
State, and local law enforcement to address the
MANPADS threat and potential ways to improve
such intelligence sharing.
‘‘(C) Contingency plans that the Department has
developed in the event that it receives intelligence
indicating a high threat of a MANPADS attack on
aircraft at or near United States airports.
‘‘(D) The feasibility and effectiveness of implementing public education and neighborhood watch
programs in areas surrounding United States airports in cases in which intelligence reports indicate
there is a high risk of MANPADS attacks on aircraft.
‘‘(E) Any other issues that the Secretary deems
relevant.
‘‘(3) FORMAT.—The report required by this subsection may be submitted in a classified format.
‘‘(e) DEFINITIONS.—In this section, the following definitions apply:
‘‘(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The
term ‘appropriate congressional committees’ means—
‘‘(A) the Committee on Armed Services, the Committee on International Relations [now Committee
on Foreign Affairs], and the Committee on Transportation and Infrastructure of the House of Representatives; and
‘‘(B) the Committee on Armed Services, the Committee on Foreign Relations, and the Committee on
Commerce, Science, and Transportation of the Senate.
‘‘(2) MANPADS.—The term ‘MANPADS’ means—
‘‘(A) a surface-to-air missile system designed to
be man-portable and carried and fired by a single
individual; and
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
‘‘(B) any other surface-to-air missile system designed to be operated and fired by more than one
individual acting as a crew and portable by several
individuals.’’
[Functions of President under subsecs. (a)(4)(A), (c)(2)
of section 4026 of Pub. L. 108–458, set out above, assigned to Secretary of State by section 1 of Memorandum of President of the United States, Apr. 21, 2005, 70
F.R. 48633, set out as a note under section 301 of title
3, The President.]
BILATERAL EXCHANGES AND TRADE IN DEFENSE ARTICLES AND DEFENSE SERVICES BETWEEN THE UNITED
STATES AND THE UNITED KINGDOM AND AUSTRALIA
Pub. L. 108–375, div. A, title XII, § 1225, Oct. 28, 2004,
118 Stat. 2091, provided that:
‘‘(a) POLICY.—It is the policy of Congress that bilateral exchanges and trade in defense articles and defense
services between the United States and the United
Kingdom and Australia are in the national security interest of the United States and that such exchanges
and trade should be subjected to accelerated review and
processing consistent with national security and the
requirements of the Arms Export Control Act (22 U.S.C.
2751 et seq.).
‘‘(b) REQUIREMENT.—The Secretary of State shall ensure that any license application submitted for the export of defense articles or defense services to Australia
or the United Kingdom is expeditiously processed by
the Department of State, in consultation with the Department of Defense, without referral to any other Federal department or agency, except where the item is
classified or exceptional circumstances apply.
‘‘(c) REGULATIONS.—The President shall ensure that
regulations are prescribed to implement this section.’’
ELIGIBILITY OF PANAMA UNDER ARMS EXPORT CONTROL
ACT
Pub. L. 104–164, title I, § 154, July 21, 1996, 110 Stat.
1440, provided that: ‘‘The Government of the Republic
of Panama shall be eligible to purchase defense articles
and defense services under the Arms Export Control
Act (22 U.S.C. 2751 et seq.), except as otherwise specifically provided by law.’’
REPORTS ON COUNTERPROLIFERATION ACTIVITIES AND
PROGRAMS
Pub. L. 103–337, div. A, title XV, § 1503, Oct. 5, 1994, 108
Stat. 2916; Pub. L. 104–201, div. A, title XIII, § 1309(d),
Sept. 23, 1996, 110 Stat. 2710; Pub. L. 106–65, div. A, title
XV, § 1504(c), Oct. 5, 1999, 113 Stat. 808; Pub. L. 107–314,
div. A, title XII, § 1208(b), (c), Dec. 2, 2002, 116 Stat. 2668;
Pub. L. 110–181, div. A, title XII, § 1256(d), Jan. 28, 2008,
122 Stat. 404, provided that:
‘‘(a) BIENNIAL REPORT REQUIRED.—Not later than May
1 each odd-numbered year, the Secretary of Defense
shall submit to Congress a report of the findings of the
Counterproliferation Program Review Committee established by subsection (a) of the Review Committee
charter.
‘‘(b) CONTENT OF REPORT.—Each report under subsection (a) shall include the following:
‘‘(1) A complete list, by specific program element,
of the existing, planned, or newly proposed capabilities and technologies reviewed by the Review Committee pursuant to subsection (c) of the Review Committee charter.
‘‘(2) A complete description of the requirements and
priorities established by the Review Committee.
‘‘(3) A comprehensive discussion of the near-term,
mid-term, and long-term programmatic options formulated by the Review Committee for meeting requirements prescribed by the Review Committee and
for eliminating deficiencies identified by the Review
Committee, including the annual funding requirements and completion dates established for each such
option.
‘‘(4) An explanation of the recommendations made
pursuant to subsection (c) of the Review Committee
Page 978
charter, together with a full discussion of the actions
taken to implement such recommendations or otherwise taken on the recommendations.
‘‘(5) A discussion and assessment of the status of
each Review Committee recommendation during the
two fiscal years preceding the fiscal year in which the
report is submitted, including, particularly, the
status of recommendations made during such preceding fiscal years that were reflected in the budget submitted to Congress pursuant to section 1105(a) of title
31, United States Code, in the fiscal year of the report.
‘‘(6) Each specific Department of Energy program
that the Secretary of Energy plans to develop to initial operating capability and each such program that
the Secretary does not plan to develop to initial operating capability.
‘‘(7) For each technology program scheduled to
reach initial operational capability, a recommendation from the Chairman of the Joint Chiefs of Staff
that represents the views of the commanders of the
unified and specified commands regarding the utility
and requirement of the program.
‘‘(8) A discussion of the limitations and impediments to the biological weapons counterproliferation
efforts of the Department of Defense (including legal,
policy, and resource constraints) and recommendations for the removal or mitigation of such impediments and for ways to make such efforts more effective.
‘‘(c) FORMS OF REPORT.—Each such report shall be
submitted in both unclassified and classified forms, including an annex to the classified report for special
compartmented information programs, special access
programs, and special activities programs.
‘‘(d) REVIEW COMMITTEE CHARTER DEFINED.—For purposes of this section, the term ‘Review Committee
charter’ means section 1605 of the National Defense Authorization Act for Fiscal Year 1994 [Pub. L. 103–160] (22
U.S.C. 2751 note).
‘‘(e) TERMINATION OF REQUIREMENT.—The final report
required under subsection (a) is the report for the year
following the year in which the Counterproliferation
Program Review Committee established under the Review Committee Charter ceases to exist.’’
ARAB LEAGUE BOYCOTT OF ISRAEL
Pub. L. 103–236, title V, § 564, Apr. 30, 1994, 108 Stat.
484, as amended by Pub. L. 103–415, § 1(l), Oct. 25, 1994,
108 Stat. 4301, provided that:
‘‘(a) PROHIBITION.—No defense article or defense service may be sold or leased by the United States Government to any country or international organization
that, as a matter of policy or practice, is known to
have sent letters to United States firms requesting
compliance with, or soliciting information regarding
compliance with, the Arab League secondary or tertiary boycott of Israel, unless the President determines, and so certifies to the appropriate congressional
committees, that that country or organization does not
currently maintain a policy or practice of making such
requests or solicitations.
‘‘(b) WAIVER.—
‘‘(1) 1-YEAR WAIVER.—On or after the effective date
of this section, the President may waive, for a period
of 1 year, the application of subsection (a) with respect to any country or organization if the President
determines, and reports to the appropriate congressional committees, that—
‘‘(A) such waiver is in the national interest of the
United States, and such waiver will promote the objectives of this section to eliminate the Arab boycott; or
‘‘(B) such waiver is in the national security interest of the United States.
‘‘(2) EXTENSION OF WAIVER.—If the President determines that the further extension of a waiver will promote the objectives of this section, the President,
upon notification of the appropriate congressional
committees, may grant further extensions of such
waiver for successive 12-month periods.
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
‘‘(3) TERMINATION OF WAIVER.—The President may,
at any time, terminate any waiver granted under this
subsection.
‘‘(c) DEFINITIONS.—As used in this section—
‘‘(1) the term ‘appropriate congressional committees’ means the Committee on Foreign Relations of
the Senate and the Committee on Foreign Affairs of
the House of Representatives; and
‘‘(2) the terms ‘defense article’ and ‘defense service’
have the meanings given to such terms by paragraphs
(3) and (4), respectively, of section 47 of the Arms Export Control Act [22 U.S.C. 2794(3), (4)].
‘‘(d) EFFECTIVE DATE.—This section shall take effect
1 year after the date of enactment of this Act [Apr. 30,
1994].’’
[Memorandum of President of the United States, Apr.
24, 1997, 62 F.R. 24797, delegated to Secretary of State
functions of President under section 564 of Public Law
103–236, set out above.]
[Certifications and determinations relating to suspension of application by President under section 564 of
Pub. L. 103–236, set out above, were contained in the following:
[Determination of President of the United States, No.
96–23, Apr. 30, 1996, 61 F.R. 26029.
[Determination of President of the United States, No.
95–20, May 1, 1995, 60 F.R. 22245.]
COUNTERPROLIFERATION POLICY AND PROGRAMS OF
UNITED STATES
Pub. L. 103–160, div. A, title XVI, §§ 1603, 1605, 1607,
Nov. 30, 1993, 107 Stat. 1843, 1845, 1847, as amended by
Pub. L. 103–337, div. A, title XV, §§ 1502, 1505(a), (b), Oct.
5, 1994, 108 Stat. 2914, 2919; Pub. L. 104–106, div. A, title
XV, § 1504(b), Feb. 10, 1996, 110 Stat. 513; Pub. L. 104–201,
div. A, title XIII, § 1309(a)–(c), Sept. 23, 1996, 110 Stat.
2710; Pub. L. 106–65, div. A, title XV, § 1504(a), (b), Oct.
5, 1999, 113 Stat. 808; Pub. L. 107–314, div. A, title XII,
§ 1208(a), (d), Dec. 2, 2002, 116 Stat. 2668; Pub. L. 109–163,
div. A, title X, § 1056(f), Jan. 6, 2006, 119 Stat. 3440; Pub.
L. 110–181, div. A, title XII, § 1256(a)–(c), Jan. 28, 2008, 122
Stat. 403; Pub. L. 111–383, div. A, title IX, § 901(a)(2),
Jan. 7, 2011, 124 Stat. 4317, provided that:
‘‘SEC. 1603. STUDIES RELATING TO UNITED STATES
COUNTERPROLIFERATION POLICY.
‘‘(a) AUTHORIZATION TO CONDUCT STUDIES.—The Secretary of Defense may conduct studies and analysis
programs in support of the counterproliferation policy
of the United States.
‘‘(b) COUNTERPROLIFERATION STUDIES.—Studies and
analysis programs under this section may include programs intended to explore defense policy issues that
might be involved in efforts to prevent and counter the
proliferation of weapons of mass destruction and their
delivery systems. Such efforts include—
‘‘(1) enhancing United States military capabilities
to deter and respond to terrorism, theft, and proliferation involving weapons of mass destruction;
‘‘(2) cooperating in international programs to enhance military capabilities to deter and respond to
terrorism, theft, and proliferation involving weapons
of mass destruction; and
‘‘(3) otherwise contributing to Department of Defense capabilities to deter, identify, monitor, and respond to such terrorism, theft, and proliferation involving weapons of mass destruction.
‘‘(c) DESIGNATION OF COORDINATOR.—The Under Secretary of Defense for Policy, subject to the supervision
and control of the Secretary of Defense, shall coordinate the policy studies and analysis of the Department
of Defense on countering proliferation of weapons of
mass destruction and their delivery systems.
‘‘(d) REPORT.—Not later than April 30 of each year,
the Secretary of Defense shall submit to the appropriate congressional committees a report on the activities carried out under subsection (a). Each report shall
set forth for the twelve-month period ending on the
last day of the month preceding the month in which
the report is due the following:
§ 2751
‘‘(1) A description of the studies and analysis carried out.
‘‘(2) The amounts spent for such studies and analysis.
‘‘(3) The organizations that conducted the studies
and analysis.
‘‘(4) An explanation of the extent to which such
studies and analysis contribute to the counterproliferation policy of the United States and United
States military capabilities to deter and respond to
terrorism, theft, and proliferation involving weapons
of mass destruction.
‘‘(5) A description of the measures being taken to
ensure that such studies and analysis within the Department of Defense are managed effectively and
coordinated comprehensively.
‘‘SEC. 1605. JOINT COMMITTEE FOR REVIEW OF
COUNTERPROLIFERATION PROGRAMS OF THE
UNITED STATES.
‘‘(a) ESTABLISHMENT.—(1) There is hereby established
a Counterproliferation Program Review Committee
composed of the following members:
‘‘(A) The Secretary of Defense.
‘‘(B) The Secretary of Energy.
‘‘(C) The Director of National Intelligence.
‘‘(D) The Chairman of the Joint Chiefs of Staff.
‘‘(E) The Secretary of State.
‘‘(F) The Secretary of Homeland Security.
‘‘(2) The Secretary of Defense shall chair the committee. The Secretary of Energy shall serve as the Vice
Chairman of the committee.
‘‘(3) A member of the committee may designate a representative to perform routinely the duties of the member. A representative shall be in a position of Deputy
Assistant Secretary or a position equivalent to or
above the level of Deputy Assistant Secretary. A representative of the Chairman of the Joint Chiefs of Staff
shall be a person in a grade equivalent to that of Deputy Assistant Secretary of Defense.
‘‘(4) The Secretary of Defense may delegate to the
Under Secretary of Defense for Acquisition, Technology, and Logistics the performance of the duties of
the Chairman of the committee. The Secretary of Energy may delegate to the Under Secretary of Energy responsible for national security programs of the Department of Energy the performance of the duties of the
Vice Chairman of the committee.
‘‘(5) The Assistant Secretary of Defense for Nuclear,
Chemical, and Biological Defense Programs shall serve
as executive secretary to the committee, except that
during any period during which that position is vacant
the Assistant Secretary of Defense for Strategy and
Threat Reduction shall serve as the executive secretary.
‘‘(b) PURPOSES OF THE COMMITTEE.—The purposes of
the committee are as follows:
‘‘(1) To optimize funding for, and ensure the development and deployment of—
‘‘(A) highly effective technologies and capabilities for the detection, monitoring, collection, processing, analysis, and dissemination of information
in support of United States counterproliferation
policy and efforts, including efforts to stem the proliferation of weapons of mass destruction and to negate paramilitary and terrorist threats involving
weapons of mass destruction; and
‘‘(B) disabling technologies in support of such policy.
‘‘(2) To identify and eliminate undesirable
redundancies or uncoordinated efforts in the development and deployment of such technologies and capabilities.
‘‘(3) To establish priorities for programs and funding.
‘‘(4) To encourage and facilitate interagency and
interdepartmental funding of programs in order to
ensure necessary levels of funding to develop, operate, and field highly-capable systems.
‘‘(5) To ensure that Department of Energy programs
are integrated with the operational needs of other departments and agencies of the Government.
§ 2751
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
‘‘(6) To ensure that Department of Energy national
security programs include technology demonstrations and prototype development of equipment.
‘‘(c) DUTIES.—The committee shall—
‘‘(1) identify and review existing and proposed capabilities and technologies for support of United States
nonproliferation policy and counterproliferation policy with regard to—
‘‘(A) intelligence;
‘‘(B) battlefield surveillance;
‘‘(C) passive defenses;
‘‘(D) active defenses; and
‘‘(E) counterforce capabilities;
‘‘(2) prescribe requirements and priorities for the
development and deployment of highly effective capabilities and technologies;
‘‘(3) identify deficiencies in existing capabilities
and technologies;
‘‘(4) formulate near-term, mid-term, and long-term
programmatic options for meeting requirements established by the committee and eliminating deficiencies identified by the committee; and
‘‘(5) assess each fiscal year the effectiveness of the
committee actions during the preceding fiscal year,
including, particularly, the status of recommendations made during such preceding fiscal year that
were reflected in the budget submitted to Congress
pursuant to section 1105(a) of title 31, United States
Code, for the fiscal year following the fiscal year in
which the assessment is made.
‘‘(d) ACCESS TO INFORMATION.—The committee shall
have access to information on all programs, projects,
and activities of the Department of Defense, the Department of State, the Department of Energy, the Department of State, the Department of Homeland Security, the intelligence community, and the Arms Control and Disarmament Agency that are pertinent to the
purposes and duties of the committee.
‘‘(e) RECOMMENDATIONS.—The committee shall submit
to the President and the heads of all appropriate departments and agencies of the Government such programmatic
recommendations
regarding
existing,
planned, or new programs as the committee considers
appropriate to encourage funding for capabilities and
technologies at the level necessary to support United
States counterproliferation policy.
‘‘(f) TERMINATION OF COMMITTEE.—The committee
shall cease to exist at the end of September 30, 2013.
‘‘SEC. 1607. DEFINITIONS.
‘‘For purposes of this subtitle [subtitle A, §§ 1601–1607,
of title XVI of div. A of Pub. L. 103–160, amending section 5859a of this title and enacting this note]:
‘‘(1) The term ‘appropriate congressional committees’ means—
‘‘(A) the Committee on Armed Services, the Committee on Appropriations, the Committee on Foreign Relations, and the Select Committee on Intelligence of the Senate; and
‘‘(B) the Committee on Armed Services [now
Committee on National Security], the Committee
on Appropriations, the Committee on Foreign Affairs, and the Permanent Select Committee on Intelligence of the House of Representatives.
‘‘(2) The term ‘intelligence community’ has the
meaning given such term in section 3 of the National
Security Act of 1947 (50 U.S.C. 401a).’’
[For abolition, transfer of functions, and treatment
of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of this title.]
RESTRICTION ON ARMS SALES TO SAUDI ARABIA AND
KUWAIT
Pub. L. 102–229, title I, § 104, Dec. 12, 1991, 105 Stat.
1707, provided that:
‘‘(a) No funds appropriated or otherwise made available by this or any other Act may be used in any fiscal
year to conduct, support, or administer any sale of defense articles or defense services to Saudi Arabia or Kuwait until that country has paid in full, either in cash
Page 980
or in mutually agreed in-kind contributions, the following commitments made to the United States to support Operation Desert Shield/Desert Storm:
‘‘(1) In the case of Saudi Arabia, $16,839,000,000.
‘‘(2) In the case of Kuwait, $16,006,000,000.
‘‘(b) For purposes of this section, the term ‘any sale’
means any sale with respect to which the President is
required to submit a numbered certification to the
Congress pursuant to the Arms Export Control Act [22
U.S.C. 2751 et seq.] on or after the effective date of this
section.
‘‘(c) This section shall take effect 120 days after the
date of enactment of this joint resolution [Dec. 12,
1991].
‘‘(d) Any military equipment of the United States, including battle tanks, armored combat vehicles, and artillery, included within the Conventional Forces in Europe Treaty definition of ‘conventional armaments and
equipment limited by the Treaty’, which may be transferred to any other NATO country shall be subject to
the notification procedures stated in section 523 of Public Law 101–513 [104 Stat. 2007] and in section 634A of the
Foreign Assistance Act of 1961 [22 U.S.C. 2394–1].’’
ANNUAL REPORT ON PROLIFERATION OF MISSILES AND
ESSENTIAL COMPONENTS OF NUCLEAR, BIOLOGICAL,
AND CHEMICAL WEAPONS
Pub. L. 102–190, div. A, title X, § 1097, Dec. 5, 1991, 105
Stat. 1489, as amended by Pub. L. 104–106, div. A, title
XV, §§ 1502(c)(3), 1504(d), Feb. 10, 1996, 110 Stat. 507, 514;
Pub. L. 106–65, div. A, title X, § 1067(9), Oct. 5, 1999, 113
Stat. 774, required the President to submit to Congress
annual reports on transfers by any country of weapons,
technology, or materials that can be used to deliver,
manufacture, or weaponize nuclear, biological, or
chemical weapons to any country (other than certain
specified countries) seeking to acquire such weapons,
technology, or materials, and specified time, coverage,
contents and classification of such reports, prior to repeal by Pub. L. 107–228, div. B, title XIII, § 1308(g)(1)(A),
Sept. 30, 2002, 116 Stat. 1441.
CONVENTIONAL ARMS TRANSFERS
Pub. L. 99–83, title I, § 129, Aug. 8, 1985, 99 Stat. 206, directed President, at the earliest possible date, in consultation with United States allies, to initiate discussions with the Soviet Union and France aimed at beginning multilateral negotiations to limit and control the
transfer of conventional arms to less developed countries, and, within one year after Aug. 8, 1985, submit to
Speaker of House of Representatives and chairman of
Committee on Foreign Relations of Senate a report
which specifies steps being taken to fulfill such requirements and which examines and analyzes, among
specified matters, United States policies concerning
the export of conventional arms, especially sophisticated weapons, and possible approaches to developing
multilateral limitations on conventional arms sales.
TERMINATION OF NONRECURRING ACTIVITIES UNDER
FOREIGN ASSISTANCE ACT OF 1961 AND THIS CHAPTER
AND REMOVAL FROM LAW
Section 734(c) of Pub. L. 97–113 provided that: ‘‘Except
as otherwise explicitly provided by their terms, amendments to the Foreign Assistance Act of 1961 [22 U.S.C.
2151 et seq.] and the Arms Export Control Act [this
chapter] which are applicable only to a single fiscal or
calendar year or which require reports or other actions
on a nonrecurring basis shall be deemed to have expired
and shall be removed from law upon the expiration of
the applicable time periods for the fulfillment of the required actions.’’
REPORT TO CONGRESS BY PRESIDENT ON MULTILATERAL
DISCUSSIONS CONCERNING ARMS TRANSFER POLICY
Section 15(b) of Pub. L. 95–384 directed President, not
later than Dec. 31, 1979, to transmit to Congress a detailed report assessing results and commenting on implications of multilateral discussion referred to in
Page 981
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
paragraph added to this section by section 15(a) of Pub.
L. 95–384, relating to adherence to a policy of restraint
in conventional arms transfer, prior to repeal by Pub.
L. 97–113, title VII, § 734(a)(12), Dec. 29, 1981, 95 Stat.
1560.
REPORT BY PRESIDENT ON REVIEW OF ARMS SALES
CONTROLS ON NON-LETHAL ITEMS
Section 25 of Pub. L. 95–384 directed President, within
120 days after Sept. 26, 1978, to report in writing to
Speaker of House of Representatives and chairman of
Committee on Foreign Relations of Senate the results
of the review conducted pursuant to Pub. L. 95–92, § 27,
Aug. 4, 1977, 91 Stat. 626, set out below, prior to repeal
by Pub. L. 97–113, title VII, § 734(a)(12), Dec. 29, 1981, 95
Stat. 1560.
REPORT BY PRESIDENT ON IMPACT OF FOREIGN ARMS
SALES AND TRANSFERS TO FOREIGN GOVERNMENTS ON
DEFENSE READINESS AND NATIONAL SECURITY OF
UNITED STATES
Pub. L. 95–92, § 23, Aug. 4, 1977, 91 Stat. 624, set forth
provisions respecting Presidential report on impact of
United States foreign arms sales and transfers on defense readiness and national security, prior to repeal by
Pub. L. 95–384, § 29(c)(2)(B), Sept. 26, 1978, 92 Stat. 747.
STUDY BY PRESIDENT OF NATIONAL SECURITY AND
MILITARY IMPLICATIONS OF INTERNATIONAL TRANSFERS OF TECHNOLOGY; SCOPE OF STUDY; UTILIZATION
OF EXECUTIVE DEPARTMENTS AND AGENCIES
Pub. L. 95–92, § 24, Aug. 4, 1977, 91 Stat. 624, as amended by Pub. L. 97–113, title VII, § 734(a)(13), Dec. 29, 1981,
95 Stat. 1560, directed President to conduct a comprehensive study of policies and practices of United States
Government with respect to national security and military implications of international transfers of technology in order to determine whether such policies and
practices should be changed, with President to utilize
resources and expertise of Arms Control and Disarmament Agency, Department of State, Department of Defense, Department of Commerce, National Science
Foundation, Office of Science and Technology Policy,
and such other entities within the Executive branch as
he deemed necessary.
STATEMENT OF POLICY REGARDING UNITED STATES
ARMS SALES TO ISRAEL
Pub. L. 95–92, § 26, Aug. 4, 1977, 91 Stat. 625, provided
that: ‘‘In accordance with the historic special relationship between the United States and Israel and previous
agreements and continuing understandings, the Congress joins with the President in reaffirming that a policy of restraint in United States arms transfers, including arms sales ceilings, shall not impair Israel’s deterrent strength or undermine the military balance in the
Middle East.’’
REVIEW BY PRESIDENT OF CATEGORIES AND ARMS
SALES CONTROLS ON LETHAL AND NON-LETHAL ITEMS
Pub. L. 95–92, § 27, Aug. 4, 1977, 91 Stat. 626, directed
President to undertake a review of all regulations relating to arms control for the purpose of defining and
categorizing lethal and non-lethal products and establishing the appropriate level of control for each category.
STUDY OF UNITED STATES ARMS SALES POLICIES AND
PRACTICES BY PRESIDENT; REPORT TO CONGRESS
Section 202(b) of Pub. L. 94–329 set forth provisions respecting study and report to Congress of United States
arms sales policies and practices, prior to repeal by
Pub. L. 95–384, § 29(c)(1)(A), Sept. 26, 1978, 92 Stat. 747.
PRESIDENTIAL REPORT REGARDING SALES OF EXCESS
DEFENSE ARTICLES TO FOREIGN GOVERNMENTS AND
INTERNATIONAL ORGANIZATIONS
Section 217 of Pub. L. 94–329 set forth provisions respecting report by the President of all sales under this
§ 2751
chapter of excess defense articles to foreign governments and international organizations, prior to repeal
by Pub. L. 95–384, § 29(c)(1)(B), Sept. 26, 1978, 92 Stat. 747.
STUDY BY SECRETARIES OF STATE AND DEFENSE ON
CONSEQUENCES OF ENACTMENT OF ARMS EXPORT CONTROL PROVISIONS
Section 218 of Pub. L. 94–329 set forth provisions respecting study by the Secretaries of State and Defense
on consequences of enactment of arms export control
provisions by title II of Pub. L. 94–329, prior to repeal
by Pub. L. 95–384, § 29(c)(1)(C), Sept. 26, 1978, 92 Stat. 747.
TOTAL NUMBER OF CREDITS TO BE EXTENDED BETWEEN
JULY 1, 1976, AND SEPTEMBER 30, 1976
Section 506(b) of Pub. L. 94–329 provided that the total
number of credits extended pursuant to this chapter,
between July 1, 1976, and Sept. 30, 1976, not exceed an
amount equal to one-fourth of the total amount of
credits extended and guaranteed for fiscal year 1976.
ADDITIONAL MILITARY AND CIVILIAN PERSONNEL FOR
DEPARTMENT OF DEFENSE
Pub. L. 94–329, title VI, § 605(a), June 30, 1976, 90 Stat.
768, provided that: ‘‘Nothing in this Act [see Short Title
of 1976 Amendment note set out under section 2151 of
the title] is intended to authorize any additional military or civilian personnel for the Department of Defense for the purposes of this Act, the Foreign Assistance Act of 1961 [section 2151 et seq. of this title], or the
Arms Export Control Act [this chapter]. Personnel levels authorized in statutes authorizing appropriations
for military and civilian personnel of the Department
of Defense shall be controlling over all military and civilian personnel of the Department of Defense assigned
to carry out functions under the Arms Export Control
Act and the Foreign Assistance Act of 1961.’’
SALES TO THE MIDDLE EAST; REQUESTS FOR
ADDITIONAL APPROPRIATIONS
Section 5 of Pub. L. 91–672 provided that: ‘‘It is the
sense of Congress that (1) the President should continue to press forward urgently with his efforts to negotiate with the Soviet Union and other powers a limitation on arms shipments to the Middle East, (2) the
President should be supported in his position that arms
will be made available and credits provided to Israel
and other friendly states, to the extent that the President determines such assistance to be needed in order
to meet threats to the security and independence of
such states, and (3) if the authorization provided in the
Foreign Military Sales Act, as amended [this chapter],
should prove to be insufficient to effectuate this stated
policy, the President should promptly submit to the
Congress requests for an appropriate supplementary authorization and appropriation.’’
REVIEW OF MILITARY AID PROGRAMS AND EFFORTS FOR
REGULATION OF CONVENTIONAL ARMS TRADE
Section 6 of Pub. L. 91–672 provided that: ‘‘It is the
sense of the Congress that—
‘‘(1) the President should immediately institute a
thorough and comprehensive review of the military
aid programs of the United States, particularly with
respect to the military assistance and sales operations of the Department of Defense, and
‘‘(2) the President should take such actions as may
be appropriate—
‘‘(A) to initiate multilateral discussions among
the United States, the Union of Soviet Socialist Republics, Great Britain, France, West Germany,
Italy and other countries on the control of the
worldwide trade in armaments,
‘‘(B) to commence a general debate in the United
Nations with respect to the control of the conventional arms trade, and
‘‘(C) to use the power and prestige of his office to
signify the intention of the United States to work
actively with all nations to check and control the
§ 2751
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
international sales and distribution of conventional
weapons of death and destruction.’’
EXECUTIVE ORDER NO. 11501
Ex. Ord. No. 11501, Dec. 22, 1969, 34 F.R. 20169, as
amended by Ex. Ord. No. 11685, Sept. 25, 1972, 37 F.R.
20155, which related to the administration of this chapter, was revoked by Ex. Ord. No. 11958, Jan. 18, 1977, 42
F.R. 4311, set out below.
EX. ORD. NO. 11958. ADMINISTRATION OF CHAPTER
Ex. Ord. No. 11958, Jan. 18, 1977, 42 F.R. 4311, as
amended by Ex. Ord. No. 12118, Feb. 6, 1979, 44 F.R. 7939;
Ex. Ord. No. 12163, Sept. 29, 1979, 44 F.R. 56673; Ex. Ord.
No. 12210, Apr. 16, 1980, 45 F.R. 26313; Ex. Ord. No. 12321,
Sept. 14, 1981, 46 F.R. 46109; Ex. Ord. No. 12365, May 24,
1982, 47 F.R. 22933; Ex. Ord. No. 12423, May 26, 1983, 48
F.R. 24025; Ex. Ord. No. 12560, May 24, 1986, 51 F.R. 19159;
Ex. Ord. No. 12680, July 5, 1989, 54 F.R. 28995; Ex. Ord.
No. 12738, § 7, Dec. 14, 1990, 55 F.R. 52035; Ex. Ord. No.
13030, § 2, Dec. 12, 1996, 61 F.R. 66187; Ex. Ord. No. 13091,
§ 1, June 29, 1998, 63 F.R. 36153; Ex. Ord. No. 13118, § 10(8),
Mar. 31, 1999, 64 F.R. 16598; Ex. Ord. No. 13284, § 13, Jan.
23, 2003, 68 F.R. 4076, provided:
By virtue of the authority vested in me by the Constitution and statutes of the United States of America,
including the Arms Export Control Act, as amended (22
U.S.C. 2751 et seq.), and Section 301 of Title 3 of the
United States Code, and as President of the United
States of America, it is hereby ordered as follows:
SECTION 1. Delegation of Functions. The following functions conferred upon the President by the Arms Export
Control Act (22 U.S.C. 2751 et seq.), hereinafter referred
to as the Act, and related legislation, are delegated as
follows:
(a) Those under Section 3 of the Act [22 U.S.C. 2753],
with the exception of subsections (a)(1), (b), (c)(3),
(c)(4), and (f) to the Secretary of State: Provided, That
the Secretary of State, in the implementation of the
functions delegated to him under Sections 3(a) and (d)
of the Act, is authorized to find, in the case of a proposed transfer of a defense article or related training or
other defense service by a foreign country or international organization not otherwise eligible under Section 3(a)(1) of the Act, whether the proposed transfer
will strengthen the security of the United States and
promote world peace.
(b) Those under Section 5 [22 U.S.C. 2755] to the Secretary of State.
(c) Those under Section 21 of the Act [22 U.S.C. 2761],
with the exception of the last sentence of subsection (d)
and all of subsection (i) [22 U.S.C. 2761(d), (i)], to the
Secretary of Defense.
(d) Those under Sections 22(a), 29, 30 and 30A of the
Act [22 U.S.C. 2762(a), 2769, 2770, 2770a] to the Secretary
of Defense.
(e) Those under Section 23 of the Act [22 U.S.C. 2763]
and section 571 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act,
1990 (Public Law 101–167) [22 U.S.C. 2763 note], to the
Secretary of Defense, to be exercised in consultation
with the Secretary of State and the Secretary of the
Treasury, except that the President shall determine
any rate of interest to be charged which is less than the
market rate of interest.
(f) Those under Sections 24, 27, and 28 of the Act [22
U.S.C. 2764, 2767, former 2768] to the Secretary of Defense. The Secretary of Defense, in implementing the
functions delegated to him under Sections 24 and 27 [22
U.S.C. 2764, 2767], shall consult with the Secretary of
State and the Secretary of the Treasury.
(g) Those under Section 25 of the Act [22 U.S.C. 2765]
to the Secretary of State. The Secretary of Defense and
the Director of the Arms Control and Disarmament
Agency, within their respective areas of responsibility,
shall assist the Secretary of State in the preparation of
materials for presentation to the Congress under that
Section.
(h) Those under Section 34 of the Act [22 U.S.C. 2774]
to the Secretary of State. To the extent the standards
Page 982
and criteria for credit and guaranty transactions are
based upon national security and financial policies, the
Secretary of State shall obtain the prior concurrence of
the Secretary of Defense and the Secretary of the
Treasury, respectively.
(i) Those under Section 35(a) of the Act [22 U.S.C.
2775(a)] to the Secretary of State.
(j) Those under Sections 36(a) and 36(b)(1) of the Act
[22 U.S.C. 2776(a), (b)(1)], except with respect to the certification of an emergency as provided by subsection
(b)(1), to the Secretary of Defense. The Secretary of Defense, in the implementation of the functions delegated
to him under Sections 36(a) and (b)(1) shall consult with
the Secretary of State, who shall, with respect to matters related to subparagraphs (D) and (I) of Section
36(b)(1), consult with the Director of the Arms Control
and Disarmament Agency. With respect to those functions under Sections 36(a)(5) and (6), the Secretary of
Defense shall consult with the Director of the Office of
Management and Budget.
(k) Those under Sections 36(c) and (d) of the Act [22
U.S.C. 2776(c), (d)] to the Secretary of State. Those
under Section 36(e) of the Act, as added by Public Law
104–164 with respect to transmittals pursuant to Section 36(b) to the Secretary of Defense, and with respect
to transmittals pursuant to Section 36(c), to the Secretary of State.
(l) Those under Section 38 of the Act [22 U.S.C. 2778]:
(1) to the Secretary of State, except as otherwise provided in this subsection. Designations, including
changes in designations, by the Secretary of State of
items or categories of items which shall be considered
as defense articles and defense services subject to export control under Section 38 shall have the concurrence of the Secretary of Defense. The authority to undertake activities to ensure compliance with established export conditions may be redelegated to the Secretary of Defense, or to the head of another department
or agency as appropriate, which shall exercise such
functions in consultation with the Secretary of State;
(2) to the Attorney General, to the extent they relate
to the control of the import of defense articles and defense services. In carrying out such functions, the Attorney General shall be guided by the views of the Secretary of State on matters affecting world peace, and
the external security and foreign policy of the United
States. Designations including changes in designations,
by the Attorney General of items or categories of items
which shall be considered as defense articles and defense services subject to import control under Section
38 of the Act [22 U.S.C. 2778] shall have the concurrence
of the Secretary of State and the Secretary of Defense;
(3) to the Secretary of Commerce, to carry out on behalf of the Secretary of State, to the extent such functions involve Section 38(e) of the Act [22 U.S.C. 2778(e)]
and are agreed to by the Secretary of State and the
Secretary of Commerce.
(m) Those under Section 39(b) of the Act [22 U.S.C.
2779(b)] to the Secretary of State. In carrying out such
functions, the Secretary of State shall consult with the
Secretary of Defense as may be necessary to avoid interference in the application of Department of Defense
regulations to sales made under Section 22 of the Act
[22 U.S.C. 2762].
(n) Those under Section 40A of the Act [22 U.S.C.
2785], as added by Public Law 104–164, to the Secretary
of State insofar as they relate to commercial exports
licensed under the Act, and to the Secretary of Defense
insofar as they relate to defense articles and defense
services sold, leased, or transferred under the Foreign
Military Sales Program.
(o) Those under Section 40A of the Act [22 U.S.C.
2781], as added by the Antiterrorism and Effective
Death Penalty Act of 1996 (Public Law 104–132), to the
Secretary of State.
(p) Those under Sections 42(c) and (f) of the Act [22
U.S.C. 2791(c), (f)] to the Secretary of Defense. The Secretary of Defense shall obtain the concurrence of the
Secretary of State and the Secretary of the Treasury
on any determination proposed under the authority of
Section 42(c) of the Act [22 U.S.C. 2791(c)].
Page 983
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(q) Those under Sections 52(b) and 53 of the Act [22
U.S.C. 2795a(b), former 2795b] to the Secretary of Defense.
(r) Those under Sections 61 and 62(a) of the Act [22
U.S.C. 2796, 2796a(a)] to the Secretary of Defense.
(s) Those under Section 2(b)(6) of the Export-Import
Bank Act of 1945 (12 U.S.C. 635(b)(6)) to the Secretary of
State.
(t) Those under Section 588(b) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1989 (Public Law 100–461) [Oct. 1, 1988,
102 Stat. 2268–51], to the Secretary of Defense, except
with respect to the determination of an emergency as
provided by subsection (b)(3). The Secretary of Defense
in implementation of the functions delegated to him
under section 588(b) shall consult with the Secretary of
State.
SEC. 2. Coordination. (a) In addition to the specific
provisions of Section 1 of this Order, the Secretary of
State and the Secretary of Defense, in carrying out the
functions delegated to them under this Order, shall
consult with each other and with the heads of other departments and agencies, including the Secretary of the
Treasury, the Attorney General, and the Chairman of
the Export-Import Bank, on matters pertaining to
their responsibilities.
(b) In accordance with Section 2(b) of the Act [22
U.S.C. 2752(b)] and under the directions of the President, the Secretary of State, taking into account other
United States activities abroad, shall be responsible for
the continuous supervision and general direction of
sales and exports under the Act, including but not limited to, the negotiation, conclusion, and termination of
international agreements, and determining whether
there shall be a sale to a country and the amount
thereof, and whether there shall be delivery or other
performance under such sale or export, to the end that
sales and exports are integrated with other United
States activities and the foreign policy of the United
States is best served thereby.
SEC. 3. Allocation of Funds. Funds appropriated to the
President for carrying out the Act shall be deemed to
be allocated to the Secretary of Defense without any
further action of the President.
SEC. 4. Revocation. Executive Order No. 11501, as
amended, is revoked; except that, to the extent consistent with this Order, all determinations, authorizations,
regulations, rulings, certificates, orders, directives,
contracts, agreements, and other actions made, issued,
taken or entered into under the provisions of Executive
Order No. 11501, as amended, and not revoked, superseded or otherwise made inapplicable, shall continue in
full force and effect until amended, modified or terminated by appropriate authority.
[For abolition, transfer of functions, and treatment
of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of this title.]
§ 2752. Coordination with foreign policy
(a) Noninfringement of powers or functions of
Secretary of State
Nothing contained in this chapter shall be
construed to infringe upon the powers or functions of the Secretary of State.
(b) Responsibility for supervision and direction
of sales, leases, financing, cooperative
projects, and exports
Under the direction of the President, the Secretary of State (taking into account other
United States activities abroad, such as military assistance, economic assistance, and the
food for peace program) shall be responsible for
the continuous supervision and general direction of sales, leases, financing, cooperative
projects, and exports under this chapter, including, but not limited to, determining—
§ 2752
(1) whether there will be a sale to or financing for a country and the amount thereof;
(2) whether there will be a lease to a country;
(3) whether there will be a cooperative
project and the scope thereof; and
(4) whether there will be delivery or other
performance under such sale, lease, cooperative project, or export,
to the end that sales, financing, leases, cooperative projects, and exports will be integrated
with other United States activities and to the
end that the foreign policy of the United States
would be best served thereby.
(c) Coordination among representatives of
United States
The President shall prescribe appropriate procedures to assure coordination among representatives of the United States Government in each
country, under the leadership of the Chief of the
United States Diplomatic Mission. The Chief of
the diplomatic mission shall make sure that recommendations of such representatives pertaining to sales are coordinated with political and
economic considerations, and his comments
shall accompany such recommendations if he so
desires.
(Pub. L. 90–629, ch. 1, § 2, Oct. 22, 1968, 82 Stat.
1322; Pub. L. 94–329, title II, § 212(a)(2), June 30,
1976, 90 Stat. 745; Pub. L. 97–113, title I,
§ 109(b)(1), Dec. 29, 1981, 95 Stat. 1526; Pub. L.
99–83, title I, § 115(b)(1), Aug. 8, 1985, 99 Stat. 201;
Pub. L. 99–145, title XI, § 1102(a)(2), (5), Nov. 8,
1985, 99 Stat. 710; Pub. L. 99–661, div. A, title
XIII, § 1342(e), Nov. 14, 1986, 100 Stat. 3991.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a) and (b), 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.
AMENDMENTS
1986—Subsec. (b). Pub. L. 99–661 repealed section
1102(a)(2) of Pub. L. 99–145 and the amendments made
by that section, and provided that this section shall
apply as if that section had never been enacted. See
1985 Amendments note below.
1985—Subsec. (b). Pub. L. 99–83 amended subsec. (b)
generally, substituting reference to the food for peace
program for reference to food for freedom and adding financing and cooperative projects under this chapter to
the list of responsibilities of the Secretary of State.
Pub. L. 99–145, § 1102(a)(2), which enacted amendments
similar to those provided in Pub. L. 99–83, was repealed.
See 1986 Amendments note above and Repeals; Effective
Date note below.
1981—Subsec. (b). Pub. L. 97–113 substituted ‘‘sales,
leases,’’ for ‘‘sales’’ in two places and ‘‘such sale,
lease,’’ for ‘‘such sale’’ and inserted ‘‘whether there
shall be a lease to a country,’’ after ‘‘whether there
shall be a sale to a country and the amount thereof,’’.
1976—Subsec. (b). Pub. L. 94–329 inserted ‘‘and exports’’ after ‘‘sales’’ wherever appearing and ‘‘and
whether there shall be delivery or other performance
under such sale or export,’’ after ‘‘thereof,’’.
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
§ 2753
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
REPEALS; EFFECTIVE DATE
Pub. L. 99–145, title XI, § 1102(a)(5), Nov. 8, 1985, 99
Stat. 710, which provided for the repeal of the amendments made by § 1102(a) of Pub. L. 99–145, effective as of
the effective date of similar amendments by Pub. L.
99–83, was repealed by Pub. L. 99–661, div. A, title XIII,
§ 1342(e), Nov. 14, 1986, 100 Stat. 3991.
§ 2753. Eligibility for defense services or defense
articles
(a) Prerequisites for consent by President; report
to Congress
No defense article or defense service shall be
sold or leased by the United States Government
under this chapter to any country or international organization, and no agreement shall
be entered into for a cooperative project (as defined in section 2767 of this title), unless—
(1) the President finds that the furnishing of
defense articles and defense services to such
country or international organization will
strengthen the security of the United States
and promote world peace;
(2) the country or international organization
shall have agreed not to transfer title to, or
possession of, any defense article or related
training or other defense service so furnished
to it, or produced in a cooperative project (as
defined in section 2767 of this title), to anyone
not an officer, employee, or agent of that
country or international organization (or the
North Atlantic Treaty Organization or the
specified member countries (other than the
United States) in the case of a cooperative
project) and not to use or permit the use of
such article or related training or other defense service for purposes other than those for
which furnished unless the consent of the
President has first been obtained:
(3) the country or international organization
shall have agreed that it will maintain the security of such article or service and will provide substantially the same degree of security
protection afforded to such article or service
by the United States Government; and
(4) the country or international organization
is otherwise eligible to purchase or lease defense articles or defense services.
In considering a request for approval of any
transfer of any weapon, weapons system, munitions, aircraft, military boat, military vessel, or
other implement of war to another country, the
President shall not give his consent under paragraph (2) to the transfer unless the United
States itself would transfer the defense article
under consideration to that country. In addition, the President shall not give his consent
under paragraph (2) to the transfer of any significant defense articles on the United States
Munitions List unless the foreign country requesting consent to transfer agrees to demilitarize such defense articles prior to transfer, or
the proposed recipient foreign country provides
a commitment in writing to the United States
Government that it will not transfer such defense articles, if not demilitarized, to any other
foreign country or person without first obtaining the consent of the President. The President
shall promptly submit a report to the Speaker
of the House of Representatives and to the Com-
Page 984
mittee on Foreign Relations of the Senate on
the implementation of each agreement entered
into pursuant to clause (2) of this subsection.
(b) Necessity of consent by President
The consent of the President under paragraph
(2) of subsection (a) of this section or under
paragraph (1) of section 2314(a) of this title (as it
relates to subparagraph (B) of such paragraph)
shall not be required for the transfer by a foreign country or international organization of
defense articles sold by the United States under
this chapter if a treaty referred to in section
2778(j)(1)(C)(i) of this title permits such transfer
without prior consent of the President, or if—
(1) such articles constitute components incorporated into foreign defense articles;
(2) the recipient is the government of a
member country of the North Atlantic Treaty
Organization, the Government of Australia,
the Government of Japan, the Government of
the Republic of Korea, the Government of Israel, or the Government of New Zealand;
(3) the recipient is not a country designated
under section 2371 of this title;
(4) the United States-origin components are
not—
(A) significant military equipment (as defined in section 2794(9) of this title);
(B) defense articles for which notification
to Congress is required under section 2776(b)
of this title; and
(C) identified by regulation as Missile
Technology Control Regime items; and
(5) the foreign country or international organization provides notification of the transfer of the defense articles to the United States
Government not later than 30 days after the
date of such transfer.
(c) Termination of credits, guaranties or sales;
report of violation by President; national security exception; conditions for reinstatement
(1)(A) No credits (including participations in
credits) may be issued and no guaranties may be
extended for any foreign country under this
chapter as hereinafter provided, if such country
uses defense articles or defense services furnished under this chapter, or any predecessor
Act, in substantial violation (either in terms of
quantities or in terms of the gravity of the consequences regardless of the quantities involved)
of any agreement entered into pursuant to any
such Act (i) by using such articles or services for
a purpose not authorized under section 2754 of
this title or, if such agreement provides that
such articles or services may only be used for
purposes more limited than those authorized
under section 2754 of this title for a purpose not
authorized under such agreement; (ii) by transferring such articles or services to, or permitting any use of such articles or services by, anyone not an officer, employee, or agent of the recipient country without the consent of the
President; or (iii) by failing to maintain the security of such articles or services.
(B) No cash sales or deliveries pursuant to previous sales may be made with respect to any foreign country under this chapter as hereinafter
provided, if such country uses defense articles or
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
defense services furnished under this chapter, or
any predecessor Act, in substantial violation (either in terms of quantity or in terms of the
gravity of the consequences regardless of the
quantities involved) of any agreement entered
into pursuant to any such Act by using such articles or services for a purpose not authorized
under section 2754 of this title or, if such agreement provides that such articles or services may
only be used for purposes more limited than
those authorized under section 2754 of this title,
for a purpose not authorized under such agreement.
(2) The President shall report to the Congress
promptly upon the receipt of information that a
violation described in paragraph (1) of this subsection may have occurred.
(3)(A) A country shall be deemed to be ineligible under subparagraph (A) of paragraph (1) of
this subsection, or both subparagraphs (A) and
(B) of such paragraph in the case of a violation
described in both such paragraphs, if the President so determines and so reports in writing to
the Congress, or if the Congress so determines
by joint resolution.
(B) Notwithstanding a determination by the
President of ineligibility under subparagraph (B)
of paragraph (1) of this subsection, cash sales
and deliveries pursuant to previous sales may be
made if the President certifies in writing to the
Congress that a termination thereof would have
significant adverse impact on United States security, unless the Congress adopts or has adopted a joint resolution pursuant to subparagraph
(A) of this paragraph with respect to such ineligibility.
(4) A country shall remain ineligible in accordance with paragraph (1) of this subsection until
such time as—
(A) the President determines that the violation has ceased; and
(B) the country concerned has given assurances satisfactory to the President that such
violation will not recur.
(d) Submission of written certification to Congress; contents; classified material; effective
date of consent; report to Congress; transfers
not subject to procedures
(1) Subject to paragraph (5), the President may
not give his consent under paragraph (2) of subsection (a) of this section or under the third sentence of such subsection, or under section
2314(a)(1) or 2314(a)(4) of this title, to a transfer
of any major defense equipment valued (in terms
of its original acquisition cost) at $14,000,000 or
more, or any defense article or related training
or other defense service valued (in terms of its
original acquisition cost) at $50,000,000 or more,
unless the President submits to the Speaker of
the House of Representatives and the Committee on Foreign Relations of the Senate a written
certification with respect to such proposed
transfer containing—
(A) the name of the country or international
organization proposing to make such transfer,
(B) a description of the article or service
proposed to be transferred, including its acquisition cost,
(C) the name of the proposed recipient of
such article or service,
§ 2753
(D) the reasons for such proposed transfer,
and
(E) the date on which such transfer is proposed to be made.
Any certification submitted to Congress pursuant to this paragraph shall be unclassified, except that information regarding the dollar value
and number of articles or services proposed to be
transferred may be classified if public disclosure
thereof would be clearly detrimental to the security of the United States.
(2)(A) Except as provided in subparagraph (B),
unless the President states in the certification
submitted pursuant to paragraph (1) of this subsection that an emergency exists which requires
that consent to the proposed transfer become effective immediately in the national security interests of the United States, such consent shall
not become effective until 30 calendar days after
the date of such submission and such consent
shall become effective then only if the Congress
does not enact, within such 30-day period, a
joint resolution prohibiting the proposed transfer.
(B) In the case of a proposed transfer to the
North Atlantic Treaty Organization, or any
member country of such Organization, Japan,
Australia, the Republic of Korea, Israel, or New
Zealand, unless the President states in the certification submitted pursuant to paragraph (1)
of this subsection that an emergency exists
which requires that consent to the proposed
transfer become effective immediately in the
national security interests of the United States,
such consent shall not become effective until fifteen calendar days after the date of such submission and such consent shall become effective
then only if the Congress does not enact, within
such fifteen-day period, a joint resolution prohibiting the proposed transfer.
(C) If the President states in his certification
under subparagraph (A) or (B) that an emergency exists which requires that consent to the
proposed transfer become effective immediately
in the national security interests of the United
States, thus waiving the requirements of that
subparagraph, the President shall set forth in
the certification a detailed justification for his
determination, including a description of the
emergency circumstances which necessitate immediate consent to the transfer and a discussion
of the national security interests involved.
(D)(i) 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.
(ii) For the purpose of expediting the consideration and enactment of joint resolutions under
this paragraph, a motion to proceed to the consideration of any such joint resolution after it
has been reported by the appropriate committee
shall be treated as highly privileged in the
House of Representatives.
(3)(A) Subject to paragraph (5), the President
may not give his consent to the transfer of any
major defense equipment valued (in terms of its
original acquisition cost) at $14,000,000 or more,
or of any defense article or defense service valued (in terms of its original acquisition cost) at
$50,000,000 or more, the export of which has been
§ 2753
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
licensed or approved under section 2778 of this
title or has been exempted from the licensing requirements of this chapter pursuant to a treaty
referred to in section 2778(j)(1)(C)(i) of this title
where such treaty does not authorize the transfer without prior United States Government approval, unless before giving such consent the
President submits to the Speaker of the House
of Representatives and the Chairman of the
Committee on Foreign Relations of the Senate a
certification containing the information specified in subparagraphs (A) through (E) of paragraph (1). Such certification shall be submitted—
(i) at least 15 calendar days before such consent is given in the case of a transfer to a
country which is a member of the North Atlantic Treaty Organization or Australia,
Japan, the Republic of Korea, Israel, or New
Zealand; and
(ii) at least 30 calendar days before such consent is given in the case of a transfer to any
other country,
unless the President states in his certification
that an emergency exists which requires that
consent to the proposed transfer become effective immediately in the national security interests of the United States. If the President states
in his certification that such an emergency exists (thus waiving the requirements of clause (i)
or (ii), as the case may be, and of subparagraph
(B)) the President shall set forth in the certification a detailed justification for his determination, including a description of the emergency
circumstances which necessitate that consent to
the proposed transfer become effective immediately and a discussion of the national security
interests involved.
(B) Consent to a transfer subject to subparagraph (A) shall become effective after the end of
the 15-day or 30-day period specified in subparagraph (A)(i) or (ii), as the case may be, only if
the Congress does not enact, within that period,
a joint resolution prohibiting the proposed
transfer.
(C)(i) 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.
(ii) For the purpose of expediting the consideration and enactment of joint resolutions under
this paragraph, a motion to proceed to the consideration of any such joint resolution after it
has been reported by the appropriate committee
shall be treated as highly privileged in the
House of Representatives.
(4) This subsection shall not apply—
(A) to transfers of maintenance, repair, or
overhaul defense services, or of the repair
parts or other defense articles used in furnishing such services, if the transfer will not result in any increase, relative to the original
specifications, in the military capability of
the defense articles and services to be maintained, repaired, or overhauled;
(B) to temporary transfers of defense articles for the sole purpose of receiving maintenance, repair, or overhaul; or
(C) to arrangements among members of the
North Atlantic Treaty Organization or be-
Page 986
tween the North Atlantic Treaty Organization
and any of its member countries—
(i) for cooperative cross servicing, or
(ii) for lead-nation procurement if the certification transmitted to the Congress pursuant to section 2776(b) of this title with regard to such lead-nation procurement identified the transferees on whose behalf the
lead-nation procurement was proposed.
(5) In the case of a transfer to a member country of the North Atlantic Treaty Organization
(NATO) or Australia, Japan, the Republic of
Korea, Israel, or New Zealand that does not authorize a new sales territory that includes any
country other than such countries, the limitations on consent of the President set forth in
paragraphs (1) and (3)(A) shall apply only if the
transfer is—
(A) a transfer of major defense equipment
valued (in terms of its original acquisition
cost) at $25,000,000 or more; or
(B) a transfer of defense articles or defense
services valued (in terms of its original acquisition cost) at $100,000,000 or more).1
(e) Transfers without consent of President; report to Congress
If the President receives any information that
a transfer of any defense article, or related
training or other defense service, has been made
without his consent as required under this section or under section 2314 of this title, he shall
report such information immediately to the
Speaker of the House of Representatives and the
Committee on Foreign Relations of the Senate.
(f) Sales and leases to countries in breach of nuclear nonproliferation agreements and treaties
No sales or leases shall be made to any country that the President has determined is in material breach of its binding commitments to the
United States under international treaties or
agreements concerning the nonproliferation of
nuclear explosive devices (as defined in section
6305(4) of this title) and unsafeguarded special
nuclear material (as defined in section 6305(8) of
this title).
(g) Unauthorized use of articles
Any agreement for the sale or lease of any article on the United States Munitions List entered into by the United States Government
after November 29, 1999, shall state that the
United States Government retains the right to
verify credible reports that such article has been
used for a purpose not authorized under section
2754 of this title or, if such agreement provides
that such article may only be used for purposes
more limited than those authorized under section 2754 of this title, for a purpose not authorized under such agreement.
(Pub. L. 90–629, ch. 1, § 3, Oct. 22, 1968, 82 Stat.
1322; Pub. L. 91–672, § 1, Jan. 12, 1971, 84 Stat. 2053;
Pub. L. 93–189, § 25(2), Dec. 17, 1973, 87 Stat. 729;
Pub. L. 93–559, § 45(a)(1), Dec. 30, 1974, 88 Stat.
1813; Pub. L. 94–329, title II, §§ 203(a), 204(a),
(b)(1), title III, § 304(b), June 30, 1976, 90 Stat. 735,
1 So in original. The closing parenthesis probably should not
appear.
Page 987
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
736, 754, 755; Pub. L. 95–92, §§ 15–18, Aug. 4, 1977, 91
Stat. 622; Pub. L. 96–92, § 11, Oct. 29, 1979, 93 Stat.
705; Pub. L. 96–533, title I, § 101, Dec. 16, 1980, 94
Stat. 3131; Pub. L. 97–113, title I, §§ 101(a), 102(a),
109(b)(2), Dec. 29, 1981, 95 Stat. 1519, 1520, 1526;
Pub. L. 99–83, title I, § 115(b)(2), title V, § 503(b),
Aug. 8, 1985, 99 Stat. 201, 221; Pub. L. 99–145, title
XI, § 1102(a)(3), (5), Nov. 8, 1985, 99 Stat. 710; Pub.
L. 99–247, § 1(a), Feb. 12, 1986, 100 Stat. 9; Pub. L.
99–661, div. A, title XIII, § 1342(e), Nov. 14, 1986,
100 Stat. 3991; Pub. L. 100–461, title V, § 577, Oct.
1, 1988, 102 Stat. 2268–45; Pub. L. 101–222, § 2(b),
Dec. 12, 1989, 103 Stat. 1896; Pub. L. 103–236, title
VIII, § 822(a)(1), Apr. 30, 1994, 108 Stat. 511; Pub.
L. 104–164, title I, §§ 141(a), (b), 142, July 21, 1996,
110 Stat. 1430, 1431, 1433; Pub. L. 106–113, div. B,
§ 1000(a)(7) [div. B, title XII, § 1225], Nov. 29, 1999,
113 Stat. 1536, 1501A–499; Pub. L. 107–228, div. B,
title XIV, § 1405(a)(1), Sept. 30, 2002, 116 Stat.
1456; Pub. L. 110–429, title II, § 203(b)(1), (2), Oct.
15, 2008, 122 Stat. 4845; Pub. L. 111–266, title I,
§§ 102(a), 104(a), title III, § 301, Oct. 8, 2010, 124
Stat. 2797, 2799, 2804.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a) to (d), 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 subsec. (d)(2)(D)(i), (3)(C)(i), is section 601(b) of Pub.
L. 94–329, June 30, 1976, 90 Stat. 729, which made provision for expedited procedures in the Senate, and is not
classified to the Code.
AMENDMENTS
2010—Subsec. (b). Pub. L. 111–266, § 102(a), inserted ‘‘a
treaty referred to in section 2778(j)(1)(C)(i) of this title
permits such transfer without prior consent of the
President, or if’’ after ‘‘under this chapter if’’ in introductory provisions.
Subsec. (b)(2). Pub. L. 111–266, § 301(2), inserted ‘‘the
Government of Israel,’’ before ‘‘or the Government of
New Zealand’’.
Subsec. (d)(2)(B). Pub. L. 111–266, § 301(1), inserted ‘‘Israel,’’ before ‘‘or New Zealand’’.
Subsec. (d)(3)(A). Pub. L. 111–266, § 104(a), inserted in
introductory provisions ‘‘or has been exempted from
the licensing requirements of this chapter pursuant to
a treaty referred to in section 2778(j)(1)(C)(i) of this
title where such treaty does not authorize the transfer
without prior United States Government approval’’
after ‘‘approved under section 2778 of this title’’.
Subsec. (d)(3)(A)(i). Pub. L. 111–266, § 301(1), inserted
‘‘Israel,’’ before ‘‘or New Zealand’’.
Subsec. (d)(5). Pub. L. 111–266, § 301(1), inserted ‘‘Israel,’’ before ‘‘or New Zealand’’ in introductory provisions.
2008—Subsec. (b)(2). Pub. L. 110–429, § 203(b)(2), inserted ‘‘the Government of the Republic of Korea,’’ before ‘‘or the Government of New Zealand’’.
Subsec. (d)(2)(B), (3)(A)(i), (5). Pub. L. 110–429,
§ 203(b)(1), inserted ‘‘the Republic of Korea,’’ before ‘‘or
New Zealand’’.
2002—Subsec.
(d)(1),
(3)(A).
Pub.
L.
107–228,
§ 1405(a)(1)(A), substituted ‘‘Subject to paragraph (5),
the President may not’’ for ‘‘The President may not’’ in
introductory provisions.
Subsec. (d)(5). Pub. L. 107–228, § 1405(a)(1)(B), added
par. (5).
1999—Subsec. (g). Pub. L. 106–113 added subsec. (g).
1996—Subsec. (b). Pub. L. 104–164, § 142, added subsec.
(b).
§ 2753
Subsec. (d)(2)(A). Pub. L. 104–164, § 141(a)(1), struck
out ‘‘, as provided for in sections 2776(b)(2) and
2776(b)(3) of this title’’ after ‘‘joint resolution’’.
Subsec. (d)(2)(B). Pub. L. 104–164, § 141(a)(2), substituted ‘‘joint resolution prohibiting the proposed
transfer’’ for ‘‘law prohibiting the proposed transfer’’.
Subsec. (d)(2)(C), (D). Pub. L. 104–164, § 141(a)(3), added
subpars. (C) and (D).
Subsec. (d)(3)(A). Pub. L. 104–164, § 141(b), designated
existing provisions as subpar. (A), struck out ‘‘at least
30 calendar days’’ before ‘‘before giving such consent
the President’’, substituted ‘‘a certification’’ for ‘‘a report’’ after ‘‘Committee on Foreign Relations of the
Senate’’, and substituted ‘‘Such certification shall be
submitted—
‘‘(i) at least 15 calendar days before such consent is
given in the case of a transfer to a country which is
a member of the North Atlantic Treaty Organization
or Australia, Japan, or New Zealand; and
‘‘(ii) at least 30 calendar days before such consent is
given in the case of a transfer to any other country,
unless the President states in his certification that an
emergency exists which requires that consent to the
proposed transfer become effective immediately in the
national security interests of the United States. If the
President states in his certification that such an emergency exists (thus waiving the requirements of clause
(i) or (ii), as the case may be, and of subparagraph (B))
the President shall set forth in the certification a detailed justification for his determination, including a
description of the emergency circumstances which necessitate that consent to the proposed transfer become
effective immediately and a discussion of the national
security interests involved.’’ for ‘‘Such consent shall
become effective then only if the Congress does not
enact, within a 30-day period, a joint resolution, as provided for in sections 2776(c)(2) and 2776(c)(3) of this title
prohibiting the proposed transfer.’’
Subsec. (d)(3)(B), (C). Pub. L. 104–164, § 141(b)(3), added
subpars. (B) and (C).
1994—Subsec. (f). Pub. L. 103–236 added subsec. (f).
1989—Subsec. (f). Pub. L. 101–222 struck out subsec. (f)
which directed termination of sales under this chapter
to countries granting sanctuary to international terrorists. See section 2780 of this title.
1988—Subsec. (d)(2)(A). Pub. L. 100–461, § 577(1), substituted ‘‘joint resolution, as provided for in sections
2776(b)(2) and 2776(b)(3) of this title’’ for ‘‘law’’.
Subsec. (d)(3). Pub. L. 100–461, § 577(2), inserted at end
‘‘Such consent shall become effective then only if the
Congress does not enact, within a 30-day period, a joint
resolution, as provided for in sections 2776(c)(2) and
2776(c)(3) of this title prohibiting the proposed transfer.’’
1986—Subsec. (a). Pub. L. 99–661 repealed section
1102(a)(3) of Pub. L. 99–145 and the amendments made
by that section, and provided that this section shall
apply as if that section had never been enacted. See
1985 Amendments note below.
Subsec. (d)(2)(A). Pub. L. 99–247, § 1(a)(1), substituted
‘‘enact, within such 30-day period, a law prohibiting’’
for ‘‘adopt, within such 30-day period, a concurrent resolution disapproving’’.
Subsec. (d)(2)(B). Pub. L. 99–247, § 1(a)(2), substituted
‘‘enact, within such fifteen-day period, a law prohibiting’’ for ‘‘adopt, within such fifteen-day period, a concurrent resolution disapproving’’.
1985—Subsec. (a). Pub. L. 99–83, § 115(b)(2), in introductory text and in par. (2) inserted provisions relating to
cooperative projects, and in par. (3) inserted ‘‘or service’’ after ‘‘such article’’ in two places.
Pub. L. 99–145, § 1102(a)(3), which enacted amendments
similar to those provided in Pub. L. 99–83, § 115(b)(2),
was repealed. See 1986 Amendments note above and
former section 1105(a)(5) of Pub. L. 99–145 set out as a
Repeals; Effective Date note under section 2752 of this
title.
Subsec. (f). Pub. L. 99–83, § 503(b), struck out
‘‘, credits, and guaranties’’ and ‘‘, credits, or guaranties’’ wherever appearing in pars. (1) and (2).
§ 2753
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
1981—Subsec. (a). Pub. L. 97–113, § 109(b)(2), substituted in introductory text ‘‘sold or leased’’ for
‘‘sold’’, and in par. (4) ‘‘purchase or lease’’ for ‘‘purchase’’.
Subsec. (d)(1). Pub. L. 97–113, § 101(a)(1), substituted in
introductory text ‘‘, or under section 2314(a)(1) or
2314(a)(4) of this title, to a transfer of any major defense equipment valued (in terms of its original acquisition cost) at $14,000,000 or more, or any defense article
or related training or other defense service valued (in
terms of its original acquisition cost) at $50,000,000 or
more,’’ for ‘‘to a transfer of a defense article, or related
training or other defense service, sold under this chapter and may not give his consent to such a transfer
under section 2314(a)(1) or (a)(4) of this title’’, in subpar. (B) ‘‘a description of the article or service proposed
to be transferred, including its acquisition cost’’ for ‘‘a
description of the defense article or related training or
other defense service proposed to be transferred, including the original acquisition cost of such defense article or related training or other defense service’’, in
subpar. (C) ‘‘article or service’’ for ‘‘defense article or
related training or other defense service’’, and in provision following subpar. (E) ‘‘articles or services’’ for ‘‘defense articles, or related training or other defense services,’’.
Subsec. (d)(2). Pub. L. 97–113, § 102(a), designated existing provisions as subpar. (A), substituted ‘‘Except as
provided in subparagraph (B), unless’’ for ‘‘Unless’’, and
added subpar. (B).
Subsec. (d)(3). Pub. L. 97–113, § 101(a)(2), substituted
‘‘transfer of any major defense equipment valued (in
terms of its original acquisition cost) at $14,000,000 or
more, or of any defense article or defense service valued (in terms of its original acquisition cost) at
$50,000,000 or more’’ for ‘‘transfer to a third country of
a defense article or a defense service valued (in terms
of its original acquisition costs) at $25,000,000 or more,
or of major defense equipment valued (in terms of its
original acquisition costs) at $7,000,000 or more’’.
Subsec. (d)(4). Pub. L. 97–113, § 101(a)(3), struck out
subpar. (D), which provided that subsec. (d) of this section not apply to transfers to the North Atlantic Treaty Organization, any member country of such organization, Japan, Australia, or New Zealand, of any major
defense equipment valued (in terms of its original acquisition cost) at less than $7,000,000 or of any defense
article or related training or other defense service valued (in terms of its original acquisition cost) at less
than $25,000,000.
1980—Subsec. (d)(1). Pub. L. 96–533, § 101(a)(2)(A), substituted ‘‘pursuant to this paragraph’’ for ‘‘pursuant to
this subsection’’.
Subsec. (d)(2). Pub. L. 96–533, § 101(a)(2)(B), substituted
‘‘paragraph (1) of this subsection’’ for ‘‘this subsection’’.
Subsec. (d)(3). Pub. L. 96–533, § 101(a)(1)(B), added par.
(3). Former par. (3) redesignated (4).
Subsec. (d)(4). Pub. L. 96–533, § 101(a)(1)(A), (b), redesignated former par. (3) as (4) and, in par (4) as so redesignated, added subpar. (D).
1979—Subsec. (d)(3)(C). Pub. L. 96–92 made subsec. (d)
of this section inapplicable to arrangements between
the North Atlantic Treaty Organization and any of its
member countries, incorporated existing text in provisions designated cl. (i) and added cl. (ii).
1977—Subsec. (b). Pub. L. 95–92, § 15, struck out subsec. (b) which related to prohibitions on sales, etc., to
countries seizing or fining American fishing vessels for
fishing in waters more than twelve miles from their
coastlines.
Subsec. (d). Pub. L. 95–92, §§ 16, 17, redesignated existing provisions as par. (1), struck out ‘‘, 30 days prior to
giving such consent,’’ before ‘‘the President submits’’,
redesignated pars. (1) to (5) as subpars. (A) to (E), respectively, and added pars. (2) and (3).
Subsec. (f). Pub. L. 95–92, § 18, added subsec. (f).
1976—Subsec. (a). Pub. L. 94–329, §§ 203(a), 204(b)(1), inserted in par. (2) ‘‘or related training or other defense
service’’ after ‘‘article’’ wherever appearing and struck
Page 988
out provisions following par. (4) relating to the President’s notification of his consent to transfer war implements to another country, in writing, to the Speaker of
the House of Representatives and the Committee on
Foreign Relations of the Senate indicating his justification for the transfer and the particular war implement transferred.
Subsec. (c). Pub. L. 94–329, § 304(b)(1), provided that
the President, by so stating in writing to Congress, or
Congress, by joint resolution, terminate credits, guaranties or sales upon determining a violation, permitted
cash sales and deliveries pursuant to previous sales to
be made if the President certifies in writing to Congress that termination thereof would be adverse to national security unless Congress adopts or has adopted a
joint resolution determining such eligibility, and specified conditions for reinstatement of eligibility.
Subsec. (d). Pub. L. 94–329, §§ 204(a), 304(b)(2), added
subsec. (d). Former subsec. (d), which related to conditions for reinstatement after a determination of ineligibility, was repealed and is now covered by subsec. (c).
Subsec. (e). Pub. L. 94–329, §§ 204(a), 304(b)(2), added
subsec. (e).
1974—Subsec. (d). Pub. L. 93–559 struck out first sentence provision respecting furnishing of sophisticated
weapons to countries in violation of agreements pursuant to subsec. (a)(2) of this section, section 2314(a) of
this title, or other similar provisions and substituted
‘‘in accordance with subsection (c) of this section’’ for
‘‘in accordance with this subsection’’.
1973—Subsec. (a). Pub. L. 93–189, § 25(2)(A)–(C), in par.
(2) inserted requirement not to use or permit the use of
such articles for purposes other than those for which
furnished, redesignated former par. (3) as (4), added a
new par. (3), and following par. (4), as so redesignated,
inserted provisions relating to Presidential consideration of requests prior to consent under par. (2).
Subsecs. (c), (d). Pub. L. 93–189, § 25(2)(D), added subsecs. (c) and (d).
1971—Subsec. (b). Pub. L. 91–672 extended the retaliatory measures against countries seizing, taking custody or fining American vessels for fishing outside of
twelve miles of their coast, to sales, credits, guaranties, and laid down a period of one year as the extent
of such prohibition, and added assurances of future restraint received from such countries as an additional
ground for waiver, and provided exception that the prohibition will not apply in cases governed by international agreements to which the United States is a
party.
EFFECTIVE DATE OF 1996 AMENDMENT
Section 141(f) of Pub. L. 104–164 provided that: ‘‘The
amendments made by this section [amending this section and sections 2776, 2796a, and 2796b of this title]
apply with respect to certifications required to be submitted on or after the date of the enactment of this Act
[July 21, 1996].’’
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103–236 effective 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.
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Section 203(a) of Pub. L. 94–329 provided that the
amendment made by that section is effective July 1,
1976.
DELEGATION OF FUNCTIONS
Functions of President under this section, except subsecs. (a)(1), (b), (c)(3), (4), and (f), delegated to Secretary
of State, with Secretary authorized to make certain
Page 989
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
findings under subsec. (a)(1) in implementing functions
delegated under subsecs. (a) and (d), by section 1(a) of
Ex. Ord. No. 11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as a note under section 2751 of this title.
SECURITY COOPERATION WITH THE REPUBLIC OF KOREA
Pub. L. 110–429, title II, § 203(a), Oct. 15, 2008, 122 Stat.
4844, provided that: ‘‘Congress makes the following
findings:
‘‘(1) Close and continuing defense cooperation between the United States and the Republic of Korea
continues to be in the national security interest of
the United States.
‘‘(2) The Republic of Korea was designated a major
non-NATO ally in 1987, the first such designation.
‘‘(3) The Republic of Korea has been a major purchaser of United States defense articles and services
through the Foreign Military Sales (FMS) program,
totaling $6,900,000,000 in deliveries over the last 10
years.
‘‘(4) Purchases of United States defense articles,
services, and major defense equipment facilitate and
increase the interoperability of Republic of Korea
military forces with the United States Armed Forces.
‘‘(5) Congress has previously enacted important,
special defense cooperation arrangements for the Republic of Korea, as in the Act entitled ‘An Act to authorize the transfer of items in the War Reserves
Stockpile for Allies, Korea’, approved December 30,
2005 (Public Law 109–159; 119 Stat. 2955), which authorized the President, notwithstanding section 514 of the
Foreign Assistance Act of 1961 (22 U.S.C. 2321h), to
transfer to the Republic of Korea certain defense
items to be included in a war reserve stockpile for
that country.
‘‘(6) Enhanced support for defense cooperation with
the Republic of Korea is important to the national security of the United States, including through creation of a status in law for the Republic of Korea
similar to the countries in the North Atlantic Treaty
Organization, Japan, Australia, and New Zealand,
with respect to consideration by Congress of foreign
military sales to the Republic of Korea.’’
REPORTING REQUIREMENTS
Pub. L. 105–277, div. A, § 101(d) [title V, § 594], Oct. 21,
1998, 112 Stat. 2681–150, 2681–215, as amended by Pub. L.
106–31, title V, § 5002(c)–(e), May 21, 1999, 113 Stat. 109,
provided that:
‘‘(a) NOTIFICATION.—No less than 15 days prior to the
export to any country identified pursuant to subparagraph (c) of any lethal defense article or service in the
amount of $14,000,000 or less, the President shall provide a detailed notification to the Committees on Appropriations and Foreign Relations of the Senate and
the Committees on Appropriations and International
Relations [now Committee on Foreign Affairs] of the
House of Representatives.
‘‘(b) CONTENT OF NOTIFICATION.—A detailed notification transmitted pursuant to subsection (a) shall include the same type and quantity of information required of a notification submitted pursuant to section
36(b) of the Arms Export Control Act (22 U.S.C. 2776(b)).
‘‘(c) COUNTRIES DEFINED.—This section shall apply to
any country that is—
‘‘(1) identified in section 520 of this Act [Pub. L.
105–277, 112 Stat. 2681–176], or a comparable provision
in a subsequent appropriations Act; or
‘‘(2) currently ineligible, in whole or in part, under
an annual appropriations Act to receive funds for
International Military Education and Training or
under the Foreign Military Financing Program, excluding high-income countries as defined pursuant to
section 546(b) of the Foreign Assistance Act of 1961 [22
U.S.C. 2347e(b)].
‘‘(d) EXCLUSIONS.—Information reportable under title
V of the National Security Act of 1947 [50 U.S.C. 413 et
seq.] is excluded from the requirements of this section.’’
§ 2754
[For delegation of functions of President under section 101(d) [title V, § 594] of div. A of Pub. L. 105–277, set
out above, see Ex. Ord. No. 12163, Sept. 29, 1979, 44 F.R.
56673, as amended, set out as a note under section 2381
of this title.]
ELIGIBILITY OF BALTIC STATES FOR NONLETHAL
DEFENSE ARTICLES
Pub. L. 102–511, title IX, § 906, Oct. 24, 1992, 106 Stat.
3356, provided that:
‘‘(a) ELIGIBILITY.—Estonia, Latvia, and Lithuania
shall each be eligible—
‘‘(1) to purchase, or to receive financing for the purchase of, nonlethal defense articles—
‘‘(A) under the Arms Export Control Act (22
U.S.C. 2751 et seq.), without regard to section 3(a)(1)
of that Act [22 U.S.C. 2753(a)(1)], or
‘‘(B) under section 503 of the Foreign Assistance
Act of 1961 (22 U.S.C. 2311), without regard to the requirement in subsection (a) of that section for a
Presidential finding; and
‘‘(2) to receive nonlethal excess defense articles
transferred under section 519 of the Foreign Assistance Act of 1961 (22 U.S.C. 2321m), without regard to
the restrictions in subsection (a) of that section.
‘‘(b) DEFINITIONS.—As used in this section—
‘‘(1) the term ‘defense article’ has the same meaning given to that term in section 47(3) of the Arms
Export Control Act (22 U.S.C. 2794(3)); and
‘‘(2) the term ‘excess defense article’ has the same
meaning given to that term in section 644(g) of the
Foreign Assistance Act of 1961 (22 U.S.C. 2403(g)).’’
§ 2754. Purposes for which military sales or
leases by the United States are authorized;
report to Congress
Defense articles and defense services shall be
sold or leased by the United States Government
under this chapter to friendly countries solely
for internal security, for legitimate self-defense,
for preventing or hindering the proliferation of
weapons of mass destruction and of the means of
delivering such weapons, to permit the recipient
country to participate in regional or collective
arrangements or measures consistent with the
Charter of the United Nations, or otherwise to
permit the recipient country to participate in
collective measures requested by the United Nations for the purpose of maintaining or restoring
international peace and security, or for the purpose of enabling foreign military forces in less
developed friendly countries to construct public
works and to engage in other activities helpful
to the economic and social development of such
friendly countries. It is the sense of the Congress that such foreign military forces should
not be maintained or established solely for civic
action activities and that such civic action activities not significantly detract from the capability of the military forces to perform their
military missions and be coordinated with and
form part of the total economic and social development effort: Provided, That none of the funds
contained in this authorization shall be used to
guarantee, or extend credit, or participate in an
extension of credit in connection with any sale
of sophisticated weapons systems, such as missile systems and jet aircraft for military purposes, to any underdeveloped country other than
Greece, Turkey, Iran, Israel, the Republic of
China, the Philippines and Korea unless the
President determines that such financing is important to the national security of the United
States and reports within thirty days each such
determination to the Congress.
§ 2755
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(Pub. L. 90–629, ch. 1, § 4, Oct. 22, 1968, 82 Stat.
1322; Pub. L. 97–113, title I, § 109(b)(3), Dec. 29,
1981, 95 Stat. 1526; Pub. L. 107–228, div. B, title
XII, § 1202(a), Sept. 30, 2002, 116 Stat. 1427.)
REFERENCES IN TEXT
This chapter, referred to in text, 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.
AMENDMENTS
2002—Pub. L. 107–228 inserted ‘‘for preventing or hindering the proliferation of weapons of mass destruction
and of the means of delivering such weapons,’’ after
‘‘legitimate self-defense,’’ in first sentence.
1981—Pub. L. 97–113 substituted ‘‘sold or leased’’ for
‘‘sold’’ in first sentence.
§ 2755. Discrimination prohibited if based on
race, religion, national origin, or sex
(a) Congressional declaration of policy
It is the policy of the United States that no
sales should be made, and no credits (including
participations in credits) or guaranties extended
to or for any foreign country, the laws, regulations, official policies, or governmental practices of which prevent any United States person
(as defined in section 7701(a)(30) of title 26) from
participating in the furnishing of defense articles or defense services under this chapter on
the basis of race, religion, national origin, or
sex.
(b) Employment of personnel; required contractual provision
(1) No agency performing functions under this
chapter shall, in employing or assigning personnel to participate in the performance of any
such function, whether in the United States or
abroad, take into account the exclusionary policies or practices of any foreign government
where such policies or practices are based upon
race, religion, national origin, or sex.
(2) Each contract entered into by any such
agency for the performance of any function
under this chapter shall contain a provision to
the effect that no person, partnership, corporation, or other entity performing functions pursuant to such contract, shall, in employing or
assigning personnel to participate in the performance of any such function, whether in the
United States or abroad, take into account the
exclusionary policies or practices of any foreign
government where such policies or practices are
based upon race, religion, national origin, or
sex.
(c) Report by President; contents
The President shall promptly transmit reports
to the Speaker of the House of Representatives
and the chairman of the Committee on Foreign
Relations of the Senate concerning any instance
in which any United States person (as defined in
section 7701(a)(30) of title 26) is prevented by a
foreign government on the basis of race, religion, national origin, or sex, from participating
in the performance of any sale or licensed transaction under this chapter or any import or export under a treaty referred to in section
Page 990
2778(j)(1)(C)(i) of this title. Such reports shall include (1) a description of the facts and circumstances of any such discrimination, (2) the response thereto on the part of the United States
or any agency or employee thereof, and (3) the
result of such response, if any.
(d) Congressional request for information from
President; information required; 60 day period; failure to supply information; termination or restriction of sale
(1) Upon the request of the Committee on Foreign Relations of the Senate or the Committee
on Foreign Affairs of the House of Representatives, the President shall, within 60 days after
receipt of such request, transmit to both such
committees a statement, prepared with the assistance of the Secretary of State, with respect
to the country designated in such request, setting forth—
(A) all the available information about the
exclusionary policies or practices of the government of such country when such policies or
practices are based upon race, religion, national origin or sex and prevent any such person from participating in the performance of
any sale or licensed transaction under this
chapter;
(B) the response of the United States thereto
and the results of such response;
(C) whether, in the opinion of the President,
notwithstanding any such policies or practices—
(i) extraordinary circumstances exist
which necessitate a continuation of such
sale or licensed transaction, and, if so, a description of such circumstances and the extent to which such sale or licensed transaction should be continued (subject to such
conditions as Congress may impose under
this section), and
(ii) on all the facts it is in the national interest of the United States to continue such
sale or licensed transaction; and
(D) such other information as such committee may request.
(2) In the event a statement with respect to a
sale or licensed transaction is requested pursuant to paragraph (1) of this subsection but is not
transmitted in accordance therewith within 60
days after receipt of such request, such sale or
licensed transaction shall be suspended unless
and until such statement is transmitted.
(3)(A) In the event a statement with respect to
a sale or licensed transaction is transmitted
under paragraph (1) of this subsection, the Congress may at any time thereafter adopt a joint
resolution terminating or restricting such sale
or licensed transaction.
(B) Any such resolution 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.
(C) The term ‘‘certification’’, as used in section 601 of such Act, means, for the purposes of
this paragraph, a statement transmitted under
paragraph (1) of this subsection.
(Pub. L. 90–629, ch. 1, § 5, as added Pub. L. 94–329,
title III, § 302(b), June 30, 1976, 90 Stat. 752;
amended Pub. L. 95–105, title I, § 109(a)(5), Aug.
Page 991
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
17, 1977, 91 Stat. 846; Pub. L. 99–514, § 2, Oct. 22,
1986, 100 Stat. 2095; Pub. L. 103–236, title I,
§ 162(f), Apr. 30, 1994, 108 Stat. 405; Pub. L.
103–437, § 9(a)(7), Nov. 2, 1994, 108 Stat. 4588; Pub.
L. 111–266, title I, § 104(b), Oct. 8, 2010, 124 Stat.
2799.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 90–629, Oct. 22, 1968, 82
Stat. 1321, as amended, 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 subsec. (d)(3)(B), (C), is section 601(b) of Pub. L.
94–329, June 30, 1976, 90 Stat. 729, which made provision
for expedited procedures in the Senate, and was not
classified to the Code.
AMENDMENTS
2010—Subsec. (c). Pub. L. 111–266 inserted ‘‘or any import or export under a treaty referred to in section
2778(j)(1)(C)(i) of this title’’ after ‘‘under this chapter’’.
1994—Subsec. (d)(1). Pub. L. 103–437 substituted ‘‘Foreign Affairs’’ for ‘‘International Relations’’ in introductory provisions.
Pub. L. 103–236 substituted ‘‘Secretary of State’’ for
‘‘Assistant Secretary of State for Human Rights and
Humanitarian Affairs’’ in introductory provisions.
1986—Subsecs. (a), (c). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue
Code of 1954’’, which for purposes of codification was
translated as ‘‘title 26’’ thus requiring no change in
text.
1977—Subsec. (d)(1). Pub. L. 95–105 substituted ‘‘Assistant Secretary of State’’ for ‘‘Coordinator’’ in introductory provisions.
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103–236 applicable with respect to officials, offices, and bureaus of Department of
State when executive orders, regulations, or departmental directives implementing the amendments by
sections 161 and 162 of Pub. L. 103–236 become effective,
or 90 days after Apr. 30, 1994, whichever comes earlier,
see section 161(b) of Pub. L. 103–236, as amended, set out
as a note under section 2651a of this title.
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of State by section 1(b) of Ex. Ord. No.
11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as
a note under section 2751 of this title.
§ 2756. Foreign intimidation and harassment of
individuals in United States
No letters of offer may be issued, no credits or
guarantees may be extended, and no export licenses may be issued under this chapter with respect to any country determined by the President to be engaged in a consistent pattern of
acts of intimidation or harassment directed
against individuals in the United States. The
President shall report any such determination
promptly to the Speaker of the House of Representatives and to the chairman of the Committee on Foreign Relations of the Senate.
(Pub. L. 90–629, ch. 1, § 6, as added Pub. L. 97–113,
title I, § 115, Dec. 29, 1981, 95 Stat. 1528.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 90–629, Oct. 22, 1968, 82
§ 2761
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.
SUBCHAPTER II—FOREIGN MILITARY
SALES AUTHORIZATIONS
§ 2761. Sales from stocks
(a) Eligible countries or international organizations; basis of payment; valuation of certain
defense articles
(1) The President may sell defense articles and
defense services from the stocks of the Department of Defense and the Coast Guard to any eligible country or international organization if
such country or international organization
agrees to pay in United States dollars—
(A) in the case of a defense article not intended to be replaced at the time such agreement is entered into, not less than the actual
value thereof;
(B) in the case of a defense article intended
to be replaced at the time such agreement is
entered into, the estimated cost of replacement of such article, including the contract or
production costs less any depreciation in the
value of such article; or
(C) in the case of the sale of a defense service, the full cost to the United States Government of furnishing such service, except that in
the case of training sold to a purchaser who is
concurrently receiving assistance under chapter 5 of part II of the Foreign Assistance Act
of 1961 [22 U.S.C. 2347 et seq.] or to any highincome foreign country (as described in that
chapter), only those additional costs that are
incurred by the United States Government in
furnishing such assistance.
(2) For purposes of subparagraph (A) of paragraph (1), the actual value of a naval vessel of
3,000 tons or less and 20 years or more of age
shall be considered to be not less than the greater of the scrap value or fair value (including
conversion costs) of such vessel, as determined
by the Secretary of Defense.
(b) Time of payment
Except as provided by subsection (d) of this
section, payment shall be made in advance or, if
the President determines it to be in the national
interest, upon delivery of the defense article or
rendering of the defense service.
(c) Personnel performing defense services sold
as prohibited from performing combat activities
(1) Personnel performing defense services sold
under this chapter may not perform any duties
of a combatant nature, including any duties related to training and advising that may engage
United States personnel in combat activities,
outside the United States in connection with the
performance of those defense services.
(2) Within forty-eight hours of the existence
of, or a change in status of significant hostilities or terrorist acts or a series of such acts,
which may endanger American lives or property,
involving a country in which United States personnel are performing defense services pursuant
to this chapter or the Foreign Assistance Act of
§ 2761
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
1961 [22 U.S.C. 2151 et seq.], the President shall
submit to the Speaker of the House of Representatives and to the President pro tempore of
the Senate a report, in writing, classified if necessary, setting forth—
(A) the identity of such country;
(B) a description of such hostilities or terrorist acts; and
(C) the number of members of the United
States Armed Forces and the number of
United States civilian personnel that may be
endangered by such hostilities or terrorist
acts.
(d) Billings; interest after due date, rates of interest and extension of due date
If the President determines it to be in the national interest pursuant to subsection (b) of this
section, billings for sales made under letters of
offer issued under this section after June 30,
1976, may be dated and issued upon delivery of
the defense article or rendering of the defense
service and shall be due and payable upon receipt thereof by the purchasing country or international organization. Interest shall be charged
on any net amount due and payable which is not
paid within sixty days after the date of such
billing. The rate of interest charged shall be a
rate not less than a rate determined by the Secretary of the Treasury taking into consideration
the current average market yield on outstanding short-term obligations of the United States
as of the last day of the month preceding the
billing and shall be computed from the date of
billing. The President may extend such sixtyday period to one hundred and twenty days if he
determines that emergency requirements of the
purchaser for acquisition of such defense articles or defense services exceed the ready availability to the purchaser of funds sufficient to
pay the United States in full for them within
such sixty-day period and submits that determination to the Congress together with a special emergency request for the authorization
and appropriation of additional funds to finance
such purchases under this chapter.
(e) Charges; reduction or waiver
(1) After September 30, 1976, letters of offer for
the sale of defense articles or for the sale of defense services that are issued pursuant to this
section or pursuant to section 2762 of this title
shall include appropriate charges for—
(A) administrative services, calculated on an
average percentage basis to recover the full estimated costs (excluding a pro rata share of
fixed base operation costs) of administration
of sales made under this chapter to all purchasers of such articles and services as specified in section 2792(b) of this title and section
2792(c) of this title;
(B) a proportionate amount of any nonrecurring costs of research, development, and
production of major defense equipment (except
for equipment wholly paid for either from
funds transferred under section 503(a)(3) of the
Foreign Assistance Act of 1961 [22 U.S.C.
2311(a)(3)] or from funds made available on a
nonrepayable basis under section 2763 of this
title); and
(C) the recovery of ordinary inventory losses
associated with the sale from stock of defense
Page 992
articles that are being stored at the expense of
the purchaser of such articles.
(2)(A) The President may reduce or waive the
charge or charges which would otherwise be considered appropriate under paragraph (1)(B) for
particular sales that would, if made, significantly advance United States Government interests in North Atlantic Treaty Organization
standardization,
standardization
with
the
Armed Forces of Japan, Australia, the Republic
of Korea, Israel, or New Zealand in furtherance
of the mutual defense treaties between the
United States and those countries, or foreign
procurement in the United States under coproduction arrangements.
(B) The President may waive the charge or
charges which would otherwise be considered appropriate under paragraph (1)(B) for a particular
sale if the President determines that—
(i) imposition of the charge or charges likely
would result in the loss of the sale; or
(ii) in the case of a sale of major defense
equipment that is also being procured for the
use of the Armed Forces, the waiver of the
charge or charges would (through a resulting
increase in the total quantity of the equipment purchased from the source of the equipment that causes a reduction in the unit cost
of the equipment) result in a savings to the
United States on the cost of the equipment
procured for the use of the Armed Forces that
substantially offsets the revenue foregone by
reason of the waiver of the charge or charges.
(C) The President may waive, for particular
sales of major defense equipment, any increase
in a charge or charges previously considered appropriate under paragraph (1)(B) if the increase
results from a correction of an estimate (reasonable when made) of the production quantity base
that was used for calculating the charge or
charges for purposes of such paragraph.
(3)(A) The President may waive the charges
for administrative services that would otherwise
be required by paragraph (1)(A) in connection
with any sale to the Maintenance and Supply
Agency of the North Atlantic Treaty Organization in support of—
(i) a weapon system partnership agreement;
or
(ii) a NATO/SHAPE project.
(B) The Secretary of Defense may reimburse
the fund established to carry out section 2792(b)
of this title in the amount of the charges waived
under subparagraph (A) of this paragraph. Any
such reimbursement may be made from any
funds available to the Department of Defense.
(C) As used in this paragraph—
(i) the term ‘‘weapon system partnership
agreement’’ means an agreement between two
or more member countries of the Maintenance
and Supply Agency of the North Atlantic
Treaty Organization that—
(I) is entered into pursuant to the terms of
the charter of that organization; and
(II) is for the common logistic support of a
specific weapon system common to the participating countries; and
(ii) the term ‘‘NATO/SHAPE project’’ means
a common-funded project supported by allo-
Page 993
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
cated credits from North Atlantic Treaty Organization bodies or by host nations with
NATO Infrastructure funds.
(f) Public inspection of contracts
Any contracts entered into between the
United States and a foreign country under the
authority of this section or section 2762 of this
title shall be prepared in a manner which will
permit them to be made available for public inspection to the fullest extent possible consistent
with the national security of the United States.
(g) North Atlantic Treaty Organization standardization agreements, similar agreements; reimbursement for costs; transmittal to Congress
The President may enter into North Atlantic
Treaty Organization standardization agreements in carrying out section 814 of the Act of
October 7, 1975 (Public Law 94–106), and may
enter into similar agreements with countries
which are major non-NATO allies, for the cooperative furnishing of training on bilateral or
multilateral basis, if the financial principles of
such agreements are based on reciprocity. Such
agreements shall include reimbursement for all
direct costs but may exclude reimbursement for
indirect costs, administrative surcharges, and
costs of billeting of trainees (except to the extent that members of the United States Armed
Forces occupying comparable accommodations
are charged for such accommodations by the
United States). Each such agreement shall be
transmitted promptly to the Speaker of the
House of Representatives and the Committees
on Appropriations, Armed Services, and Foreign
Relations of the Senate.
(h) Reciprocal quality assurance, inspection, contract administrative services, and contract
audit defense services; catalog data and services
(1) The President is authorized to provide
(without charge) quality assurance, inspection,
contract administration services, and contract
audit defense services under this section—
(A) in connection with the placement or administration of any contract or subcontract
for defense articles, defense services, or design
and construction services entered into after
October 29, 1979, by, or under this chapter on
behalf of, a foreign government which is a
member of the North Atlantic Treaty Organization or the Governments of Australia, New
Zealand, Japan, the Republic of Korea, or Israel, if such government provides such services in accordance with an agreement on a reciprocal basis, without charge, to the United
States Government; or
(B) in connection with the placement or administration of any contract or subcontract
for defense articles, defense services, or design
and construction services pursuant to the
North Atlantic Treaty Organization Security
Investment program in accordance with an
agreement under which the foreign governments participating in such program provide
such services, without charge, in connection
with similar contracts or subcontracts.
(2) In carrying out the objectives of this section, the President is authorized to provide cat-
§ 2761
aloging data and cataloging services, without
charge, to the North Atlantic Treaty Organization, to any member government of that Organization, or to the Governments of the Republic of
Korea, Australia, New Zealand, Japan, or Israel
if that Organization, member government, or
the Governments of the Republic of Korea, Australia, New Zealand, Japan, or Israel provides
such data and services in accordance with an
agreement on a reciprocal basis, without charge,
to the United States Government.
(i) Sales affecting combat readiness of Armed
Forces; statement to Congress; limitation on
delivery
(1) Sales of defense articles and defense services which could have significant adverse effect
on the combat readiness of the Armed Forces of
the United States shall be kept to an absolute
minimum. The President shall transmit to the
Speaker of the House of Representatives and the
Committees on Armed Services and Foreign Relations of the Senate on the same day a written
statement giving a complete explanation with
respect to any proposal to sell, under this section or under authority of subchapter II–B, any
defense articles or defense services if such sale
could have a significant adverse effect on the
combat readiness of the Armed Forces of the
United States. Each such statement shall be unclassified except to the extent that public disclosure of any item of information contained
therein would be clearly detrimental to the security of the United States. Any necessarily
classified information shall be confined to a supplemental report. Each such statement shall include an explanation relating to only one such
proposal to sell and shall set forth—
(A) the country or international organization to which the sale is proposed to be made;
(B) the amount of the proposed sale;
(C) a description of the defense article or
service proposed to be sold;
(D) a full description of the impact which
the proposed sale will have on the Armed
Forces of the United States; and
(E) a justification for such proposed sale, including a certification that such sale is important to the security of the United States.
A certification described in subparagraph (E)
shall take effect on the date on which such certification is transmitted and shall remain in effect for not to exceed one year.
(2) No delivery may be made under any sale
which is required to be reported under paragraph
(1) of this subsection unless the certification required to be transmitted by paragraph 1 (E) of
paragraph (1) is in effect.
(j) Repealed. Pub. L. 104–106, div. A, title I, § 112,
Feb. 10, 1996, 110 Stat. 206
(k) Effect of sales of excess defense articles on
national technology and industrial base
Before entering into the sale under this chapter of defense articles that are excess to the
stocks of the Department of Defense, the President shall determine that the sale of such articles will not have an adverse impact on the na1 So
in original. Probably should be ‘‘subparagraph’’.
§ 2761
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
tional technology and industrial base and, particularly, will not reduce the opportunities of
entities in the national technology and industrial base to sell new or used equipment to the
countries to which such articles are transferred.
(l) Repair of defense articles
(1) In general
The President may acquire a repairable defense article from a foreign country or international organization if such defense article—
(A) previously was transferred to such
country or organization under this chapter;
(B) is not an end item; and
(C) will be exchanged for a defense article
of the same type that is in the stocks of the
Department of Defense.
(2) Limitation
The President may exercise the authority
provided in paragraph (1) only to the extent
that the Department of Defense—
(A)(i) has a requirement for the defense article being returned; and
(ii) has available sufficient funds authorized and appropriated for such purpose; or
(B)(i) is accepting the return of the defense
article for subsequent transfer to another
foreign government or international organization pursuant to a letter of offer and acceptance implemented in accordance with
this chapter; and
(ii) has available sufficient funds provided
by or on behalf of such other foreign government or international organization pursuant
to a letter of offer and acceptance implemented in accordance with this chapter.
(3) Requirement
(A) The foreign government or international
organization receiving a new or repaired defense article in exchange for a repairable defense article pursuant to paragraph (1) shall,
upon the acceptance by the United States Government of the repairable defense article being
returned, be charged the total cost associated
with the repair and replacement transaction.
(B) The total cost charged pursuant to subparagraph (A) shall be the same as that
charged the United States Armed Forces for a
similar repair and replacement transaction,
plus an administrative surcharge in accordance with subsection (e)(1)(A) of this section.
(4) Relationship to certain other provisions of
law
The authority of the President to accept the
return of a repairable defense article as provided in subsection (a) of this section shall not
be subject to chapter 137 of title 10 or any
other provision of law relating to the conclusion of contracts.
(m) Return of defense articles
(1) In general
The President may accept the return of a defense article from a foreign country or international organization if such defense article—
(A) previously was transferred to such
country or organization under this chapter;
(B) is not significant military equipment
(as defined in section 2794(9) of this title);
and
Page 994
(C) is in fully functioning condition without need of repair or rehabilitation.
(2) Limitation
The President may exercise the authority
provided in paragraph (1) only to the extent
that the Department of Defense—
(A)(i) has a requirement for the defense article being returned; and
(ii) has available sufficient funds authorized and appropriated for such purpose; or
(B)(i) is accepting the return of the defense
article for subsequent transfer to another
foreign government or international organization pursuant to a letter of offer and acceptance implemented in accordance with
this chapter; and
(ii) has available sufficient funds provided
by or on behalf of such other foreign government or international organization pursuant
to a letter of offer and acceptance implemented in accordance with this chapter.
(3) Credit for transaction
Upon acquisition and acceptance by the
United States Government of a defense article
under paragraph (1), the appropriate Foreign
Military Sales account of the provider shall be
credited to reflect the transaction.
(4) Relationship to certain other provisions of
law
The authority of the President to accept the
return of a defense article as provided in paragraph (1) shall not be subject to chapter 137 of
title 10 or any other provision of law relating
to the conclusion of contracts.
(Pub. L. 90–629, ch. 2, § 21, Oct. 22, 1968, 82 Stat.
1323; Pub. L. 94–329, title II, §§ 205, 206, June 30,
1976, 90 Stat. 736, 738; Pub. L. 95–384, § 16, Sept. 26,
1978, 92 Stat. 740; Pub. L. 96–92, § 12, Oct. 29, 1979,
93 Stat. 705; Pub. L. 96–533, title I, §§ 102, 103,
105(b)(1), 115(b)(2), Dec. 16, 1980, 94 Stat. 3132,
3134, 3140; Pub. L. 97–113, title I, §§ 103, 104, Dec.
29, 1981, 95 Stat. 1521; Pub. L. 97–392, § 3, Dec. 29,
1982, 96 Stat. 1963; Pub. L. 98–473, title I,
§ 101(1) [title III, § 301], Oct. 12, 1984, 98 Stat. 1884,
1895; Pub. L. 99–83, title I, §§ 107(a), 108–111, Aug.
8, 1985, 99 Stat. 196, 197; Pub. L. 100–202, § 101(e)
[title V, § 580], Dec. 22, 1987, 101 Stat. 1329–131,
1329–181; Pub. L. 100–456, div. A, title X, § 1002,
Sept. 29, 1988, 102 Stat. 2037; Pub. L. 101–165, title
IX, § 9104(c), Nov. 21, 1989, 103 Stat. 1152; Pub. L.
102–25, title VII, § 705(d)(1), Apr. 6, 1991, 105 Stat.
120; Pub. L. 102–484, div. A, title I, § 114, Oct. 23,
1992, 106 Stat. 2333; Pub. L. 103–236, title VII,
§ 731(d), Apr. 30, 1994, 108 Stat. 503; Pub. L.
104–106, div. A, title I, § 112, div. D, title XLIII,
§ 4303(a), Feb. 10, 1996, 110 Stat. 206, 658; Pub. L.
104–164, title I, §§ 104(b)(1), 112(c)(2), 147(a)(3)(A),
(b), 152(a), (b), July 21, 1996, 110 Stat. 1426, 1428,
1435, 1438, 1439; Pub. L. 104–201, div. B, title
XXVIII, § 2802(d)(2), Sept. 23, 1996, 110 Stat. 2787;
Pub. L. 106–113, div. B, § 1000(a)(7) [div. B, title
XII, § 1222], Nov. 29, 1999, 113 Stat. 1536, 1501A–498;
Pub. L. 109–102, title V, § 534(l)(1), (2), Nov. 14,
2005, 119 Stat. 2211; Pub. L. 110–429, title II,
§ 203(b)(1), (3), (4), Oct. 15, 2008, 122 Stat. 4845;
Pub. L. 111–266, title III, § 301(1), Oct. 8, 2010, 124
Stat. 2804.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 90–629, Oct. 22, 1968, 82
Page 995
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
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.
The Foreign Assistance Act of 1961, referred to in subsecs. (a)(1)(C) and (c)(2), is Pub. L. 87–195, Sept. 4, 1961,
75 Stat. 424, as amended, which is classified principally
to chapter 32 (§ 2151 et seq.) of this title. Chapter 5 of
part II of such Act is classified generally to part V of
subchapter II (§ 2347 et seq.) 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.
Section 814 of the act of October 7, 1975 (Public Law
94–106), referred to in subsec. (g), is not classified to the
Code.
CODIFICATION
Amendment by Pub. L. 98–473 is based on section 102
of S. 2346, Ninety-eighth Congress, as introduced in the
Senate Feb. 27, 1984, which was enacted into permanent
law by Pub. L. 98–473.
AMENDMENTS
2010—Subsec. (e)(2)(A). Pub. L. 111–266 inserted ‘‘Israel,’’ before ‘‘or New Zealand’’.
2008—Subsec. (e)(2)(A). Pub. L. 110–429, § 203(b)(1), inserted ‘‘the Republic of Korea,’’ before ‘‘or New Zealand’’.
Subsec. (h)(1)(A). Pub. L. 110–429, § 203(b)(3), inserted
‘‘the Republic of Korea,’’ before ‘‘or Israel’’.
Subsec. (h)(2). Pub. L. 110–429, § 203(b)(4), substituted
‘‘, to any member government of that Organization, or
to the Governments of the Republic of Korea, Australia, New Zealand, Japan, or Israel if that Organization, member government, or the Governments of the
Republic of Korea, Australia, New Zealand, Japan, or
Israel’’ for ‘‘or to any member government of that Organization if that Organization or member government’’.
2005—Subsec. (h)(1)(A). Pub. L. 109–102, § 534(l)(1), inserted ‘‘or the Governments of Australia, New Zealand,
Japan, or Israel’’ after ‘‘North Atlantic Treaty Organization’’.
Subsec. (h)(2). Pub. L. 109–102, § 534(l)(2), which directed the substitution of ‘‘, to any member of that Organization, or to the Governments of Australia, New
Zealand, Japan, or Israel if that Organization, member
government, or the Governments of Australia, New
Zealand, Japan, or Israel’’ for ‘‘or to any member government that Organization if that Organization or
member government’’, could not be executed because
the phrase ‘‘or to any member government that Organization if that Organization or member government’’
does not appear in text.
1999—Subsec. (a)(1). Pub. L. 106–113 inserted ‘‘and the
Coast Guard’’ after ‘‘Department of Defense’’ in introductory provisions.
1996—Subsec. (a)(1)(C). Pub. L. 104–164, § 112(c)(2), inserted ‘‘or to any high-income foreign country (as described in that chapter)’’.
Subsec. (e)(2). Pub. L. 104–106, § 4303(a), designated existing provisions as subpar. (A) and added subpars. (B)
and (C).
Subsec. (g). Pub. L. 104–164, § 147(a)(3)(A), (b), substituted ‘‘similar agreements with countries’’ for
‘‘similar agreements with Japan, Australia, and New
Zealand, and with other countries’’ in first sentence
and struck out at end ‘‘As used in this subsection, the
term ‘major non-NATO allies’ means those countries
designated as major non-NATO allies for purposes of
section 2350a(i)(3) of title 10.’’
Subsec. (h)(1)(B). Pub. L. 104–201 substituted ‘‘Security Investment program’’ for ‘‘Infrastructure Program’’.
Subsec. (j). Pub. L. 104–106, § 112, struck out heading
and text of subsec. (j). Text read as follows:
‘‘(1) Funds received from the sale of tanks under this
section shall be available for the upgrading of tanks for
fielding to the Army.
§ 2761
‘‘(2) Funds received from the sale of infantry fighting
vehicles or armored personnel carriers under this section shall be available for the upgrading of infantry
fighting vehicles or armored personnel carriers for
fielding to the Army.
‘‘(3) Paragraphs (1) and (2) apply only to the extent
provided in advance in appropriations Acts.
‘‘(4) This subsection applies with respect to funds received from sales occurring after September 30, 1989.’’
Subsec. (k). Pub. L. 104–164, § 104(b)(1), substituted
‘‘the President shall determine that the sale of such articles will not have an adverse impact on the national
technology and industrial base and, particularly, will
not reduce the opportunities of entities in the national
technology and industrial base to sell new or used
equipment to the countries to which such articles are
transferred.’’ for ‘‘the President shall first consider the
effects of the sale of the articles on the national technology and industrial base, particularly the extent, if
any, to which the sale reduces the opportunities of entities in the national technology and industrial base to
sell new equipment to the country or countries to
which the excess defense articles are sold.’’
Subsec. (l). Pub. L. 104–164, § 152(a), added subsec. (l).
Subsec. (m). Pub. L. 104–164, § 152(b), added subsec.
(m).
1994—Subsec. (k). Pub. L. 103–236 added subsec. (k).
1992—Subsec. (j). Pub. L. 102–484 added subsec. (j).
1991—Subsec. (g). Pub. L. 102–25 substituted ‘‘section
2350a(i)(3) of title 10’’ for ‘‘section 2767a of this title’’.
1989—Subsec. (e)(1)(A). Pub. L. 101–165, § 9104(c)(1), inserted reference to section 2792(b) and (c) of this title.
Subsec. (e)(1)(B). Pub. L. 101–165, § 9104(c)(2), (3), redesignated subpar. (C) as (B) and inserted exception for
equipment wholly paid for from funds transferred under
the Foreign Assistance Act of 1961 or from funds made
available under section 2763 of this title. Former subpar. (B), which included charges for any use of plant
and production equipment in connection with defense
articles, was struck out.
Subsec. (e)(1)(C), (D). Pub. L. 101–165, § 9104(c)(3), redesignated subpar. (D) as (C). Former subpar. (C) redesignated (B).
Subsec. (e)(2). Pub. L. 101–165, § 9104(c)(4), substituted
reference to par. (1)(B) for reference to pars. (1)(B) and
(1)(C).
1988—Subsec. (e)(3). Pub. L. 100–456 added par. (3).
1987—Subsec. (g). Pub. L. 100–202 inserted ‘‘and with
other countries which are major non-NATO allies,’’
after ‘‘New Zealand,’’ and inserted last sentence defining ‘‘major non-NATO allies’’.
1985—Subsec. (a)(1). Pub. L. 99–83, § 107(a)(1), (2), designated existing provisions as par. (1), and substituted
‘‘(A)’’, ‘‘(B)’’, and ‘‘(C)’’ for ‘‘(1)’’, ‘‘(2)’’, and ‘‘(3)’’, respectively.
Subsec. (a)(1)(C). Pub. L. 99–83, § 108(a), inserted provisions relating to training sold to a purchaser receiving
assistance under chapter 5 of part II of the Foreign Assistance Act of 1961.
Subsec. (a)(2). Pub. L. 99–83, § 107(a)(3), added par. (2).
Subsec. (e)(1)(A). Pub. L. 99–83, § 109, inserted provisions excluding pro rata share of fixed base operation
costs.
Subsec. (g). Pub. L. 99–83, § 108(b), added subsec. (g).
Subsec. (h)(1). Pub. L. 99–83, §§ 110, 111(1), (2), designated existing provisions as par. (1), inserted applicability to contract administrative services, and substituted ‘‘(A)’’ and ‘‘(B)’’ for ‘‘(1)’’ and ‘‘(2)’’, respectively.
Subsec. (h)(2). Pub. L. 99–83, § 111(3), added par. (2).
1984—Subsec. (a)(3). Pub. L. 98–473 struck out ‘‘sold to
a purchaser who is concurrently receiving assistance
under chapter 5 of part II of the Foreign Assistance Act
of 1961’’ after ‘‘in the case of training’’.
Subsec. (g). Pub. L. 98–473 struck out subsec. (g)
which related to NATO standardization agreements and
similar agreements with Japan, Australia, and New
Zealand.
1982—Subsec. (i)(1). Pub. L. 97–392 inserted reference
to proposals to sell under the authority of subchapter
II–B.
§ 2762
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
1981—Subsec. (c)(2). Pub. L. 97–113, § 103, substituted
provision for a report within forty-eight hours of existence of or change in status of significant hostilities or
terrorist acts or series of such acts, which may endanger American lives or property for provision for a report within 48 hours after outbreak of significant hostilities and omitted provision for statement of relation
between the defense services and hostilities in the
country, the location and precise nature of personnel
activities, and likelihood of personnel engagement in
the hostilities.
Subsec. (e)(2). Pub. L. 97–113, § 104, authorized reduction or waiver of charges for use and nonrecurring research, development, and production costs respecting
sales significantly advancing United States interests in
standardization with Armed Forces of Japan, Australia, or New Zealand in furtherance of the mutual defense treaties between the United States and those
countries.
1980—Subsec. (a)(3). Pub. L. 96–533, § 115(b)(2), included
payment, in case of training sold to a purchaser currently receiving international military education and
training assistance, of additional costs incurred by the
United States Government in furnishing the training.
Subsec. (c). Pub. L. 96–533, § 102, designated existing
provision as par. (1), substituted ‘‘training and advising
that may engage United States personnel in combat activities’’ for ‘‘training, advising, or otherwise providing
assistance regarding combat activities’’, and added par.
(2).
Subsec. (g). Pub. L. 96–533, § 103, authorized the President to enter into standardization agreements with
Japan, Australia, and New Zealand.
Subsec. (h). Pub. L. 96–533, § 105(b)(1), substituted ‘‘defense articles, defense services, or design and construction services’’ for ‘‘defense articles or defense services’’
in two places.
1979—Subsecs. (h), (i). Pub. L. 96–92 added subsec. (h)
and redesignated former subsec. (h) as (i).
1978—Subsec. (e)(1)(D). Pub. L. 95–384 added subpar.
(D).
1976—Subsec. (a). Pub. L. 94–329, § 205, designated existing provisions as subsec. (a) and substituted provisions authorizing President to sell defense articles and
defense services from Department of Defense stocks to
eligible countries and international organizations who
agree to pay specified values for such articles and services in United States dollars, for provisions requiring
that payment for defense articles and defense services
from stocks be made in advance, or if in the best interest of the United States as determined by the President, within a reasonable period not to exceed 120 days
after delivery of the articles or rendering of the services.
Subsecs. (b) to (h). Pub. L. 94–329, §§ 205, 206, added
subsecs. (b) to (h).
EFFECTIVE DATE OF 1996 AMENDMENT
Section 4303(b)–(d) of Pub. L. 104–106 provided that:
‘‘(b) CONDITIONS.—Subsection (a) [amending this section] shall be effective only if—
‘‘(1) the President, in the budget of the President
for fiscal year 1997, proposes legislation that if enacted would be qualifying offsetting legislation; and
‘‘(2) there is enacted qualifying offsetting legislation.
‘‘(c) EFFECTIVE DATE.—If the conditions in subsection
(b) are met, then the amendments made by subsection
(a) shall take effect on the date of the enactment of
qualifying offsetting legislation [Sept. 23, 1996].
‘‘(d) DEFINITIONS.—For purposes of this section:
‘‘(1) The term ‘qualifying offsetting legislation’
means legislation that includes provisions that—
‘‘(A) offset fully the estimated revenues lost as a
result of the amendments made by subsection (a)
for each of the fiscal years 1997 through 2005;
‘‘(B) expressly state that they are enacted for the
purpose of the offset described in subparagraph (A);
and
‘‘(C) are included in full on the PayGo scorecard.
Page 996
‘‘(2) The term ‘PayGo scorecard’ means the estimates that are made by the Director of the Congressional Budget Office and the Director of the Office of
Management and Budget under section 252(d) of the
Balanced Budget and Emergency Deficit Control Act
of 1985 [2 U.S.C. 902(d)].’’
[Qualifying offsetting legislation was enacted by Pub.
L. 104–201, § 3303, listed in a Materials in the National
Defense Stockpile table under section 98d of Title 50,
War and National Defense.]
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
REGULATIONS
Section 152(c) of Pub. L. 104–164 provided that: ‘‘Under
the direction of the President, the Secretary of Defense
shall promulgate regulations to implement subsections
(l) and (m) of section 21 of the Arms Export Control Act
[22 U.S.C. 2761(l), (m)], as added by this section.’’
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.
DELEGATION OF FUNCTIONS
Functions of President under this section, except the
last sentence of subsec. (d) and subsec. (i), delegated to
Secretary of Defense by section 1(c) of Ex. Ord. No.
11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as
a note under section 2751 of this title.
§ 2762. Procurement for cash sales
(a) Authority of President; dependable undertaking by foreign country or international
organization; interest rates
Except as otherwise provided in this section,
the President may, without requirement for
charge to any appropriation or contract authorization otherwise provided, enter into contracts
for the procurement of defense articles or defense services for sale for United States dollars
to any foreign country or international organization if such country or international organization provides the United States Government
with a dependable undertaking (1) to pay the
full amount of such contract which will assure
the United States Government against any loss
on the contract, and (2) to make funds available
in such amounts and at such times as may be required to meet the payments required by the
contract, and any damages and costs that may
accrue from the cancellation of such contract,
in advance of the time such payments, damages,
or costs are due. Interest shall be charged on
any net amount by which any such country or
international organization is in arrears under
all of its outstanding unliquidated dependable
undertakings, considered collectively. The rate
of interest charged shall be a rate not less than
a rate determined by the Secretary of the Treasury taking into consideration the current average market yield on outstanding short-term obligations of the United States as of the last day
of the month preceding the net arrearage and
Page 997
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
§ 2762
shall be computed from the date of net arrearage.
(b) Issuance of letters of offer under emergency
determination; availability of appropriations
for payment
The President may, if he determines it to be in
the national interest, issue letters of offer under
this section which provide for billing upon delivery of the defense article or rendering of the defense service and for payment within one hundred and twenty days after the date of billing.
This authority may be exercised, however, only
if the President also determines that the emergency requirements of the purchaser for acquisition of such defense articles and services exceed
the ready availability to the purchaser of funds
sufficient to make payments on a dependable
undertaking basis and submits both determinations to the Congress together with a special
emergency request for authorization and appropriation of additional funds to finance such purchases under this chapter. Appropriations available to the Department of Defense may be used
to meet the payments required by the contracts
for the procurement of defense articles and defense services and shall be reimbursed by the
amounts subsequently received from the country or international organization to whom articles or services are sold.
(c) Applicability of Renegotiation Act of 1951
The provisions of the Renegotiation Act of
1951 [50 U.S.C. App. 1211 et seq.] do not apply to
procurement contracts heretofore or hereafter
entered into under this section, section 2769 of
this title, or predecessor provisions of law.
(d) Competitive pricing
(1) Procurement contracts made in implementation of sales under this section for defense articles and defense services wholly paid for from
funds made available on a nonrepayable basis
shall be priced on the same costing basis with
regard to profit, overhead, independent research
and development, bid and proposal, and other
costing elements, as is applicable to procurements of like items purchased by the Department of Defense for its own use.
(2) Direct costs associated with meeting additional or unique requirements of the purchaser
shall be allowable under contracts described in
paragraph (1). Loadings applicable to such direct
costs shall be permitted at the same rates applicable to procurement of like items purchased by
the Department of Defense for its own use.
The Renegotiation Act of 1951, referred to in subsec.
(c), is act Mar. 23, 1951, ch. 15, 65 Stat. 7, as amended,
which was classified principally to section 1211 et seq.
of Title 50, Appendix, War and National Defense, prior
to its omission from the Code. See Codification note set
out under section 1211 of Title 50, Appendix.
(Pub. L. 90–629, ch. 2, § 22, Oct. 22, 1968, 82 Stat.
1323; Pub. L. 93–189, § 25(3), Dec. 17, 1973, 87 Stat.
730; Pub. L. 94–329, title II, § 207, June 30, 1976, 90
Stat. 738; Pub. L. 95–384, § 17, Sept. 26, 1978, 92
Stat. 740; Pub. L. 96–533, title I, § 105(b)(2), Dec.
16, 1980, 94 Stat. 3134; Pub. L. 104–107, title V,
§ 531A(a), Feb. 12, 1996, 110 Stat. 731; Pub. L.
106–113, div. B, § 1000(a)(7) [div. B, title XII,
§ 1223], Nov. 29, 1999, 113 Stat. 1536, 1501A–498.)
Functions of President under subsec. (a) of this section delegated to Secretary of Defense by section 1(d)
of Ex. Ord. No. 11958, Jan. 18, 1977, 42 F.R. 4311, as
amended, set out as a note under section 2751 of this
title.
REFERENCES IN TEXT
This chapter, referred to in subsec. (b), 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.
AMENDMENTS
1999—Subsec. (d). Pub. L. 106–113 designated existing
provisions as par. (1) and added par. (2).
1996—Subsec. (d). Pub. L. 104–107 added subsec. (d).
1980—Subsec. (c). Pub. L. 96–533 substituted ‘‘procurement contracts’’ for ‘‘contracts for the procurement of
defense articles and defense services’’ and inserted reference to contracts entered into under section 2769 of
this title.
1978—Subsec. (c). Pub. L. 95–384 added subsec. (c).
1976—Subsec. (a). Pub. L. 94–329, § 207(a), inserted provisions requiring interest to be charged on any net
amount a country or international organization is in
arrears and the rate of interest to be determined by the
Secretary of Treasury considering current average
market yield of short-term obligations of United States
on a particular day.
Subsec. (b). Pub. L. 94–329, § 207(b), substituted provisions authorizing President to issue letters of offer
with provisions for billing on delivery of article or rendering of service and payment within 120 days after
billing date where President determines that emergency conditions exist, for provisions authorizing
President to accept a dependable undertaking of a foreign country or international organization with respect
to sales of defense articles and services and to make
payment within 120 days of delivery of article or rendering of service.
1973—Pub. L. 93–189 designated text preceding first
proviso as subsec. (a) and inserted ‘‘Except as otherwise
provided in this section,’’ before ‘‘the President’’, designated first proviso as subsec. (b) and inserted reference to acceptance of a dependable undertaking of a
foreign country or international organization, and
struck out further provisions setting forth Presidential
powers with respect to sales agreements with and payments by purchasing countries or international organizations.
EFFECTIVE DATE OF 1996 AMENDMENT; IMPLEMENTING
REGULATIONS
Section 531A(b) of Pub. L. 104–107 provided that: ‘‘Section 22(d) of the Arms Export Control Act [subsec. (d)
of this section], as added by subsection (a)—
‘‘(1) shall take effect on the 60th day following the
date of the enactment of this Act [Feb. 12, 1996];
‘‘(2) shall be applicable only to contracts made in
implementation of sales made after such effective
date; and
‘‘(3) shall be implemented by revised procurement
regulations, which shall be issued prior to such effective date.’’
DELEGATION OF FUNCTIONS
PRIOR PROVISIONS
Provisions similar to those comprising subsec. (d)(2)
of this section were contained in the following appropriation acts:
Pub. L. 106–113, div. B, § 1000(a)(2) [title V, § 556], Nov.
29, 1999, 113 Stat. 1535, 1501A–100.
Pub. L. 105–277, div. A, § 101(d) [title V, § 536], Oct. 21,
1998, 112 Stat. 2681–150, 2681–181.
Pub. L. 105–118, title V, § 535, Nov. 26, 1997, 111 Stat.
2416.
Pub. L. 104–208, div. A, title I, § 101(c) [title V, § 533A],
Sept. 30, 1996, 110 Stat. 3009–121, 3009–153.
§ 2763
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
Pub. L. 104–107, title V, § 531A(c), Feb. 12, 1996, 110
Stat. 731.
§ 2763. Credit sales
(a) Financing procurement of defense articles
and services, and design and construction
services
The President is authorized to finance the procurement of defense articles, defense services,
and design and construction services by friendly
foreign countries and international organizations, on such terms and conditions as he may
determine consistent with the requirements of
this section. Notwithstanding any other provision of law, and subject to the regular notification requirements of the Committees on Appropriations, the authority of this section may be
used to provide financing to Israel and Egypt for
the procurement by leasing (including leasing
with an option to purchase) of defense articles
from United States commercial suppliers, not
including Major Defense Equipment (other than
helicopters and other types of aircraft having
possible civilian application), if the President
determines that there are compelling foreign
policy or national security reasons for those defense articles being provided by commercial
lease rather than by government-to-government
sale under this chapter.
(b) Repayment period
The President shall require repayment in
United States dollars within a period not to exceed twelve years after the loan agreement with
the country or international organization is
signed on behalf of the United States Government, unless a longer period is specifically authorized by statute for that country or international organization.
(c) Interest rate; definitions
(1) The President shall charge interest under
this section at such rate as he may determine,
except that such rate may not be less than 5 percent per year.
(2) For purposes of financing provided under
this section—
(A) the term ‘‘concessional rate of interest’’
means any rate of interest which is less than
market rates of interest; and
(B) the term ‘‘market rate of interest’’
means any rate of interest which is equal to or
greater than the current average interest rate
(as of the last day of the month preceding the
financing of the procurement under this section) that the United States Government pays
on outstanding marketable obligations of
comparable maturity.
(d) Participations in credits
References in any law to credits extended
under this section shall be deemed to include
reference to participations in credits.
(e) Payments on account of prior credits or loans
(1) Funds made available to carry out this section may be used by a foreign country to make
payments of principal and interest which it owes
to the United States Government on account of
credits previously extended under this section or
loans previously guaranteed under section 2764
of this title, subject to paragraph (2).
Page 998
(2) Funds made available to carry out this section may not be used for prepayment of principal or interest pursuant to the authority of
paragraph (1).
(f) Audit of certain private firms
For each fiscal year, the Secretary of Defense,
as requested by the Director of the Defense Security Assistance Agency, shall conduct audits
on a nonreimbursable basis of private firms that
have entered into contracts with foreign governments under which defense articles, defense
services, or design and construction services are
to be procured by such firms for such governments from financing under this section.
(g) Notification requirements with respect to
cash flow financing
(1) For each country and international organization that has been approved for cash flow financing under this section, any letter of offer
and acceptance or other purchase agreement, or
any amendment thereto, for a procurement of
defense articles, defense services, or design and
construction services in excess of $100,000,000
that is to be financed in whole or in part with
funds made available under this chapter or the
Foreign Assistance Act of 1961 [22 U.S.C. 2151 et
seq.] shall be submitted to the congressional
committees specified in section 634A(a) of the
Foreign Assistance Act of 1961 [22 U.S.C.
2394–1(a)] in accordance with the procedures applicable to reprogramming notifications under
that section.
(2) For purposes of this subsection, the term
‘‘cash flow financing’’ has the meaning given
such term in subsection (d) of section 2765 of this
title.
(h) Limitation on use of funds for direct commercial contracts
Of the amounts made available for a fiscal
year to carry out this section, not more than
$100,000,000 for such fiscal year may be made
available for countries other than Israel and
Egypt for the purpose of financing the procurement of defense articles, defense services, and
design and construction services that are not
sold by the United States Government under
this chapter.
(Pub. L. 90–629, ch. 2, § 23, Oct. 22, 1968, 82 Stat.
1324; Pub. L. 93–559, § 45(a)(2), Dec. 30, 1974, 88
Stat. 1813; Pub. L. 94–329, title II, § 208(a), June
30, 1976, 90 Stat. 739; Pub. L. 96–533, title I,
§ 105(b)(3), Dec. 16, 1980, 94 Stat. 3134; Pub. L.
99–83, title I, § 102, Aug. 8, 1985, 99 Stat. 195; Pub.
L. 100–202, § 101(e) [title V, § 572], Dec. 22, 1987, 101
Stat. 1329–131, 1329–176; Pub. L. 101–513, title V,
§ 580, Nov. 5, 1990, 104 Stat. 2045; Pub. L. 104–164,
title I, § 102(a)–(c), July 21, 1996, 110 Stat. 1422.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a), (g)(1), and
(h), 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.
The Foreign Assistance Act of 1961, referred to in subsec. (g)(1), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, as
amended, which is classified principally to chapter 32
(§ 2151 et seq.) 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.
Page 999
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
AMENDMENTS
1996—Subsecs. (f) to (g). Pub. L. 104–164 added subsecs.
(f) to (g).
1990—Subsec. (e). Pub. L. 101–513 added subsec. (e).
1987—Subsec. (a). Pub. L. 100–202 inserted sentence at
end authorizing financing to Israel and Egypt for commercial leasing of defense articles, not including Major
Defense Equipment, with exception for certain aircraft,
upon a Presidential determination that there are compelling foreign policy or national defense reasons for
such leasing.
1985—Pub. L. 99–83 amended section generally. Prior
to amendment, section read as follows: ‘‘The President
is authorized to finance procurements of defense articles, defense services, and design and construction services by friendly foreign countries and international organizations on terms requiring the payment to the
United States Government in United States dollars of—
‘‘(1) the value of such articles or services within a
period not to exceed twelve years after the delivery of
such articles or the rendering of such services; and
‘‘(2) interest on the unpaid balance of that obligation for payment of the value of such articles or services, at a rate equivalent to the current average interest rate, as of the last day of the month preceding
the financing of such procurement, that the United
States Government pays on outstanding marketable
obligations of comparable maturity, unless the President certifies to Congress that the national interest
requires a lesser rate of interest and states in the certification the lesser rate so required and the justification therefor.’’
1980—Pub. L. 96–533 substituted ‘‘defense articles, defense services, and design and construction services’’
for ‘‘defense articles and defense services’’.
1976—Par. (1). Pub. L. 94–329 substituted ‘‘twelve
years’’ for ‘‘ten years’’.
1974—Pub. L. 93–559 incorporated existing provisions
in cl. (1) and added cl. (2).
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Section 208(b) of Pub. L. 94–329 provided that: ‘‘The
amendment made by subsection (a) [amending this section] shall apply with respect to financing under agreements entered into on or after the date of enactment of
this Act [June 30, 1976] for the procurement of defense
articles to be delivered, or defense services to be rendered, after such date.’’
DELEGATION OF FUNCTIONS
Functions of President under this section and section
580 of Pub. L. 100–461, see Similar Provisions note
below, except those functions relating to determinations of a rate of interest which is less than the market
rate, delegated to Secretary of Defense, to be exercised
in consultation with Secretary of State and Secretary
of the Treasury, by section 1(e) of Ex. Ord. No. 11958,
Jan. 18, 1977, 42 F.R. 4311, as amended, set out as a note
under section 2751 of this title.
SIMILAR PROVISIONS
Provisions similar to those in last sentence of subsec.
(a) of this section which were applicable to NATO and
major non-NATO allies in addition to Israel and Egypt
were contained in the following appropriation acts and
were not repeated in subsequent appropriation acts:
Pub. L. 106–113, div. B, § 1000(a)(2) [title V, § 528], Nov.
29, 1999, 113 Stat. 1535, 1501A–90.
Pub. L. 105–277, div. A, § 101(d) [title V, § 529], Oct. 21,
1998, 112 Stat. 2681–150, 2681–178.
Pub. L. 105–118, title V, § 528, Nov. 26, 1997, 111 Stat.
2413.
Pub. L. 104–208, div. A, title I, § 101(c) [title V, § 528],
Sept. 30, 1996, 110 Stat. 3009–121, 3009–149.
Pub. L.
730.
Pub. L.
1635.
Pub. L.
954.
Pub. L.
1676.
Pub. L.
2026.
Pub. L.
1245.
Pub. L.
2268–48.
§ 2764
104–107, title V, § 528, Feb. 12, 1996, 110 Stat.
103–306, title V, § 530, Aug. 23, 1994, 108 Stat.
103–87, title V, § 530, Sept. 30, 1993, 107 Stat.
102–391, title V, § 558, Oct. 6, 1992, 106 Stat.
101–513, title V, § 561, Nov. 5, 1990, 104 Stat.
101–167, title V, § 571, Nov. 21, 1989, 103 Stat.
100–461, title V, § 580, Oct. 1, 1988, 102 Stat.
§ 2764. Guaranties
(a) Guaranty against political and credit risks of
nonpayment
The President may guarantee any individual,
corporation, partnership, or other juridical entity doing business in the United States (excluding United States Government agencies other
than the Federal Financing Bank) against political and credit risks of nonpayment arising out
of their financing of credit sales of defense articles, defense services, and design and construction services to friendly countries and international organizations. Fees shall be charged for
such guaranties.
(b) Sale of promissory notes of friendly countries
and international organizations; guaranty of
payment
The President may sell to any individual, corporation, partnership, or other juridical entity
(excluding United States Government agencies
other than the Federal Financing Bank) promissory notes issued by friendly countries and
international organizations as evidence of their
obligations to make repayments to the United
States on account of credit sales financed under
section 2763 of this title, and may guarantee
payment thereof.
(c) Guaranty Reserve Fund; payment of guaranties; guaranty reserve below prescribed
amount
Funds obligated under this section before December 16, 1980, which constitute a single reserve for the payment of claims under guaranties issued under this section shall remain available for expenditure for the purposes of this section on and after that date. That single reserve
may, on and after August 8, 1985, be referred to
as the ‘‘Guaranty Reserve Fund’’. Funds provided for necessary expenses to carry out the
provisions of section 2763 of this title and of section 2311 of this title may be used to pay claims
on the Guaranty Reserve Fund to the extent
that funds in the Guaranty Reserve Fund are inadequate for that purpose. For purposes of any
provision in this chapter or any other Act relating to a prohibition or limitation on the availability of funds under this chapter, whenever a
guaranty is issued under this section, the principal amount of the loan so guaranteed shall be
deemed to be funds made available for use under
this chapter. Any guaranties issued hereunder
shall be backed by the full faith and credit of
the United States.
(Pub. L. 90–629, ch. 2, § 24, Oct. 22, 1968, 82 Stat.
1324; Pub. L. 93–189, § 25(4), Dec. 17, 1973, 87 Stat.
§ 2764
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
730; Pub. L. 93–559, § 45(a)(3), (4), Dec. 30, 1974, 88
Stat. 1814; Pub. L. 96–533, title I, §§ 104(a),
105(b)(3), Dec. 16, 1980, 94 Stat. 3132, 3134; Pub. L.
99–83, title I, § 106(b), (c), Aug. 8, 1985, 99 Stat.
196; Pub. L. 100–71, title I, July 11, 1987, 101 Stat.
409.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (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.
AMENDMENTS
1987—Subsec. (c). Pub. L. 100–71, which directed that
the second par. be struck out and a new one-sentence
par. be inserted, was executed to reflect the probable
intent of Congress by substituting the new sentence for
the third sentence which read as follows: ‘‘Funds authorized to be appropriated by section 2771(a) of this
title to carry out this chapter which are allocated for
credits at market rates of interest may be used to pay
claims under such guarantees to the extent funds in the
Guaranty Reserve Fund are inadequate for that purpose.’’
1985—Subsec. (c). Pub. L. 99–83 inserted provisions authorizing the single reserve to be termed the ‘‘Guaranty Reserve Fund’’, and substituted provisions relating to payment of claims under guarantees, for provisions relating to report to Congress respecting any payment of claims reducing the single reserve.
1980—Subsec. (a). Pub. L. 96–533, § 105(b)(3), substituted ‘‘defense articles, defense services, and design
and construction services’’ for ‘‘defense articles and defense services’’.
Subsec. (c). Pub. L. 96–533, § 104(a), substituted provisions making funds obligated before Dec. 16, 1980 available for expenditure after such date for payment of
guaranteed claims, requiring the President to report to
Congress the reduction of the single reserve below
$750,000,000 with recommendation for an appropriations
authorization of additional funds and deeming the principal amount of a guaranteed loan to be funds made
available for use under this chapter for purposes of any
limitation on availability of funds for prior provisions
for obligation of available funds in an amount equal to
10 per centum of principal amount of contractual liability related to a guaranty under this section, making
such funds a single reserve for payment of guaranteed
claims, and providing for transfer of any funds deobligated during any current fiscal year to the general fund
of the Treasury.
1974—Subsecs. (a), (b). Pub. L. 93–559, § 45(a)(3), inserted ‘‘other than the Federal Financing Bank’’ in
parenthetical text.
Subsec. (c). Pub. L. 93–559, § 45(a)(4), substituted ‘‘10’’
for ‘‘25’’ in two places.
1973—Subsec. (c). Pub. L. 93–189 substituted ‘‘to carry
out this chapter’’ for ‘‘pursuant to section 2771 of this
title’’ and inserted ‘‘principal amount of’’ before ‘‘contractual liability’’ wherever appearing.
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
EFFECTIVE DATE OF 1974 AMENDMENT; ADJUSTMENT OF
OBLIGATIONS CHARGED AGAINST APPROPRIATIONS;
CREDIT FOR FISCAL YEAR 1975 APPROPRIATIONS
Section 45(b) of Pub. L. 93–559 provided that: ‘‘The
amendment made by paragraph (4) of subsection (a)
[amending this section] shall take effect on July 1, 1974.
Obligations initially charged against appropriations
made available for purposes authorized by section 31(a)
of the Foreign Military Sales Act [section 2771(a) of
Page 1000
this title] after June 30, 1974, and prior to the enactment of this section [Dec. 30, 1974] in an amount equal
to 25 per centum of the principal amount of contractual
liability related to guaranties issued pursuant to section 24(a) of that Act [subsec. (a) of this section] shall
be adjusted to reflect such amendment with proper
credit to the appropriations made available in the fiscal year 1975 to carry out that Act [this chapter].’’
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of Defense, with Secretary of Defense required to consult with Secretary of State and Secretary of the Treasury in implementing delegated functions, by section 1(f) of Ex. Ord. No. 11958, Jan. 18, 1977,
42 F.R. 4311, as amended, set out as a note under section
2751 of this title.
FOREIGN MILITARY SALES DEBT REFORM
Pub. L. 102–145, § 118, as added by Pub. L. 102–266, § 102,
Apr. 1, 1992, 106 Stat. 93, provided that the authority
and conditions provided under the heading ‘‘Foreign
Military Sales Debt Reform’’ in H.R. 2621, One Hundred
Second Congress, 1st session, as passed by the House of
Representatives on June 19, 1991, shall be applicable to
funds appropriated by Pub. L. 102–145 (and are hereby
enacted) in lieu of the authority and conditions provided under the heading ‘‘Foreign Military Sales Debt
Reform’’ in Pub. L. 101–513 [set out below]. Provisions
under the heading ‘‘Foreign Military Sales Debt Reform’’ in H.R. 2621, as referred to above, provided that:
‘‘Subsection (b) under the heading ‘Foreign Military
Sales Debt Reform’ in the Foreign Operations, Export
Financing, and Related Programs Appropriations Act,
1988 [Pub. L. 100–202, § 101(e) [title III, § 301], set out
below], is hereby repealed.’’
Pub. L. 101–513, title III, Nov. 5, 1990, 104 Stat. 1999,
provided that: ‘‘Funds made available by the Foreign
Operations, Export Financing, and Related Programs
Appropriations Act, 1988 [Pub. L. 100–202, § 101(e) [title
III], set out below], for obligation and expenditure after
October 1, 1988, subject to a Presidential budget request, under the heading ‘Foreign Military Sales Debt
Reform’, subsection (b) ‘Interest Rate Reduction’ shall
be available, subject to the same conditions and provisos, only after October 1, 1991.’’ Similar provisions were
contained in the following prior appropriation acts:
Pub. L. 101–167, title III, Nov. 21, 1989, 103 Stat. 1214.
Pub. L. 100–461, title III, Oct. 1, 1988, 102 Stat. 2268–18.
Pub. L. 100–202, § 101(e) [title III], Dec. 22, 1987, 101
Stat. 1329–131, 1329–148, as amended by Pub. L. 101–167,
title III, Nov. 21, 1989, 103 Stat. 1214; Pub. L. 102–145,
§ 118, as added by Pub. L. 102–266, § 102, Apr. 1, 1992, 106
Stat. 93, provided in part that:
‘‘(a) REFINANCING.—Notwithstanding any other provision of law, the President is authorized during fiscal
years 1988 through 1991 to transfer existing United
States guaranties of outstanding Foreign Military
Sales (FMS) credit debt, or to issue new guaranties, either of which would be applied to loans, bonds, notes or
other obligations made or issued (as the case may be)
by private United States financial institutions (the private lender) to finance the prepayment at par of the
principal amounts maturing after September 30, 1989 of
existing FMS loans bearing interest rates of eight percent or higher, and arrearages thereon. The loans,
bonds, notes or other obligations are hereinafter referred to as the ‘private loan’: Provided, That such
guaranties which are transferred or are made pursuant
to paragraph (a) shall cover no more and no less than
ninety percent of the private loan or any portion or derivative thereof plus unpaid accrued interest and arrearages, if any, outstanding at the time of guaranty
transfer or extension: Provided further, That the total
amount of the guaranty of the private loan cannot exceed ninety percent of the outstanding principal, unpaid accrued interest and arrearages, if any, at any
time: Provided further, That of the total amount of the
private loan, the ninety percent guaranteed portion of
Page 1001
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
the private loan cannot be separated from the private
loan at any time: Provided further, That no sums in addition to the payment of the outstanding principal
amounts maturing after September 30, 1989 of the loan
(or advance), plus unpaid accrued interest thereon, and
arrearages, if any, shall be charged by the private lender or the Federal Financing Bank as a result of such
prepayment against the borrower, the guarantor, or the
Guaranty Reserve Fund (GRF), except that the private
lender may include, in the interest rate charged, a
standard fee to cover costs, such fee which will be set
at prevailing market rates, and no guaranty fee shall
be charged on guarantees transferred or issued pursuant to this provision: Provided further, That the terms
of guaranties transferred or issued under this paragraph shall be exactly the same as the existing loans or
guarantees, except as modified by this paragraph and
including but not limited to the final maturity and
principal and interest payment structure of the existing loans which shall not be altered, except that the repayments of the private loan issued debt may be consolidated into two payments per year: Provided further,
That the private loan or guarantees transferred or issued pursuant to this paragraph shall be fully and freely transferable, except that any guaranty transferred
or extended shall cease to be effective if the private
loan or any derivative thereof is to be used to provide
significant support for any non-registered obligation:
Provided further, That for purposes of sections 23 and 24
of the Arms Export Control Act (AECA) [22 U.S.C. 2763,
2764], the term ‘defense services’ shall be deemed to include the refinancing of FMS debt outstanding at the
date of the enactment of this Act [Dec. 22, 1987]: Provided further, That not later than ninety days after the
enactment of this Act, the Secretary of the Treasury
(Secretary) shall issue regulations to carry out the purposes of this heading and that in issuing such regulations, the Secretary shall (1) facilitate the prepayment
of loans and loan advances hereunder, (2) provide for
full processing of each application within thirty days of
its submission to the Secretary, and (3) except as provided in section 24(a) of the AECA, impose no restriction that increases the cost to borrowers of obtaining
private financing for prepayment hereunder or that inhibits the ability of the borrower to enter into prepayment arrangements hereunder: Provided further, That
the Secretary of State shall transmit to the Committee
on Foreign Affairs of the House of Representatives, the
Committee on Foreign Relations of the Senate, and the
Committees on Appropriations of the House of Representatives and Senate, a copy of the text of any
agreement entered into pursuant to this section not
more than thirty days after its entry into force, together with a description of the transaction.
‘‘[(b) Repealed. Pub. L. 102–145, § 118, as added by Pub.
L. 102–266, § 102, Apr. 1, 1992, 106 Stat. 93.]
‘‘(c) ARREARAGES.—(1) None of the funds provided pursuant to the Arms Export Control Act (relating to Foreign Military Sales credits) [22 U.S.C. 2751 et seq.] or
pursuant to chapter 2 of part II of the Foreign Assistance Act (relating to the Military Assistance program)
[22 U.S.C. 2311 et seq.] shall be made available to any
country for which one or more loans is refinanced pursuant to paragraph (a) of this heading and which is in
default for a period in excess of ninety days in payment
of principal or interest on (A) any loan made to such
country guaranteed by the United States pursuant to
paragraph (a) of this heading, and (B) any other loan issued pursuant to the Arms Export Control Act outstanding on the date of enactment of this provision
[Dec. 22, 1987].
‘‘(2) In conjunction with any interest rate reduction
pursuant to the authority provided in paragraph (b) of
this heading, the President shall require the country to
commit in writing that within two years of the effective date of the interest rate reduction it will be no
more than ninety days in arrears on the repayment of
principal and interest on all loans for which the interest rate is thus reduced and will remain no more than
ninety days in arrears for the remaining life of all such
§ 2765
loans. None of the funds provided pursuant to the Arms
Export Control Act [22 U.S.C. 2751 et seq.] or chapter 2
of part II of the Foreign Assistance Act [22 U.S.C. 2311
et seq.] shall be made available to any country during
any period in which it fails to comply with such commitment.
‘‘(d) PURPOSES AND REPORTS.—The authorities of
paragraphs (a) and (b) of this heading may be utilized
by the President in efforts to negotiate base rights and
base access agreements, and for other bilateral foreign
policy matters: Provided further, That the Secretaries
of Defense, State, and Treasury shall transmit to the
Committee on Foreign Affairs of the House of Representatives, the Committee on Foreign Relations of
the Senate, and the Committees on Appropriations of
the House of Representatives and Senate a joint report
detailing the United States financial and foreign policy
purposes served by implementation of this authority on
a country by country basis not later than March 1, 1989,
and a second joint report not later than August 1,
1989.’’
§ 2765. Annual estimate and justification for sales
program
(a) Report to Congress; contents
Except as provided in subsection (d) 1 of this
section, no later than February 1 of each year,
the President shall transmit to the appropriate
congressional committees, as a part of the annual presentation materials for security assistance programs proposed for the next fiscal year,
a report which sets forth—
(1) an arms sales proposal covering all sales
and licensed commercial exports under this
chapter, as well as exports pursuant to a treaty referred to in section 2778(j)(1)(C)(i) of this
title, of major weapons or weapons-related defense equipment for $7,000,000 or more, or of
any other weapons or weapons-related defense
equipment for $25,000,000 or more, which are
considered eligible for approval during the
current calendar year, together with an indication of which sales and licensed commercial
exports are deemed most likely actually to result in the issuance of a letter of offer or of an
export license during such year;
(2) an estimate of the total amount of sales
and licensed commercial exports, as well as
exports pursuant to a treaty referred to in section 2778(j)(1)(C)(i) of this title, expected to be
made to each foreign nation from the United
States;
(3) the United States national security considerations involved in expected sales or licensed commercial exports to each country,
an analysis of the relationship between anticipated sales to each country and arms control
efforts concerning such country and an analysis of the impact of such anticipated sales on
the stability of the region that includes such
country;
(4) an estimate with regard to the international volume of arms traffic to and from
nations purchasing arms as set forth in paragraphs (1) and (2) of this subsection, together
with best estimates of the sale and delivery of
weapons and weapons-related defense equipment by all major arms suppliers to all major
recipient countries during the preceding fiscal
year;
(5)(A) an estimate of the aggregate dollar
value and quantity of defense articles and de1 See
References in Text note below.
§ 2765
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
fense services, military education and training, grant military assistance, and credits and
guarantees, to be furnished by the United
States to each foreign country and international organization in the next fiscal year;
and
(B) for each country that is proposed to be
furnished credits or guaranties under this
chapter in the next fiscal year and that has
been approved for cash flow financing (as defined in subsection (d) 1 of this section) in excess of $100,000,000 as of October 1 of the current fiscal year—
(i) the amount of such approved cash flow
financing,
(ii) a description of administrative ceilings
and controls applied, and
(iii) a description of the financial resources otherwise available to such country
to pay such approved cash flow financing;
(6) an analysis and description of the services performed during the preceding fiscal year
by officers and employees of the United States
Government carrying out functions on a fulltime basis under this chapter for which reimbursement is provided under section 2792(b) of
this title or section 2761(a) of this title, including the number of personnel involved in performing such services;
(7) the total amount of funds in the reserve
under section 2764(c) of this title at the end of
the fiscal year immediately preceding the fiscal year in which a report under this section is
made, together with an assessment of the adequacy of such total amount of funds as a reserve for the payment of claims under guarantees issued pursuant to section 2764 of this
title in view of the current debt servicing capacity of borrowing countries, as reported to
the Congress pursuant to section 634(a)(5) of
the Foreign Assistance Act of 1961 [22 U.S.C.
2394(a)(5)];
(8) a list of all countries with respect to
which findings made by the President pursuant to section 2753(a)(1) of this title are in effect on the date of such transmission;
(9) the progress made under the program of
the Republic of Korea to modernize its armed
forces, the role of the United States in mutual
security efforts in the Republic of Korea and
the military balance between the People’s Republic of Korea and the Republic of Korea;
(10) the amount and nature of Soviet military assistance to the armed forces of Cuba
during the preceding fiscal year and the military capabilities of those armed forces;
(11) the status of each loan and each contract of guaranty or insurance theretofore
made under the Foreign Assistance Act of 1961
[22 U.S.C. 2151 et seq.], predecessor Acts, or
any Act authorizing international security assistance, with respect to which there remains
outstanding any unpaid obligation or potential liability; the status of each extension of
credit for the procurement of defense articles
or defense services, and of each contract of
guaranty in connection with any such procurement, theretofore made under this chapter
with respect to which there remains outstanding any unpaid obligation or potential liability;
Page 1002
(12)(A) a detailed accounting of all articles,
services, credits, guarantees, or any other
form of assistance furnished by the United
States to each country and international organization, including payments to the United
Nations, during the preceding fiscal year for
the detection and clearance of landmines, including activities relating to the furnishing of
education, training, and technical assistance
for the detection and clearance of landmines;
and
(B) for each provision of law making funds
available or authorizing appropriations for demining activities described in subparagraph
(A), an analysis and description of the objectives and activities undertaken during the preceding fiscal year, including the number of
personnel involved in performing such activities;
(13) a list of weapons systems that are significant military equipment (as defined in section 2794(9) of this title), and numbers thereof,
that are believed likely to become available
for transfer as excess defense articles during
the next 12 months; and
(14) such other information as the President
may deem necessary.
(b) Congressional request for additional information
Not later than thirty days following the receipt of a request made by any of the congressional committees described in subsection (e) of
this section for additional information with respect to any information submitted pursuant to
subsection (a) of this section, the President
shall submit such information to such committee.
(c) Submission of information in unclassified
form or classified addendum with unclassified summary
The President shall make every effort to submit all of the information required by subsection (a) or (b) of this section wholly in unclassified form. Whenever the President submits
any such information in classified form, he shall
submit such classified information in an addendum and shall also submit simultaneously a detailed summary, in unclassified form, of such
classified information.
(d) 2 ‘‘Cash flow financing’’ defined
For the purposes of subsection (a)(5)(B) of this
section, the term ‘‘cash flow financing’’ means
the dollar amount of the difference between the
total estimated price of a Letter of Offer and Acceptance or other purchase agreement that has
been approved for financing under this chapter
or under section 503(a)(3) of the Foreign Assistance Act of 1961 [22 U.S.C. 2311(a)(3)] and the
amount of the financing that has been approved
therefor; 3
(d) 2 Transmission of information to Congress
The information required by subsection (a)(4)
of this section shall be transmitted to the Congress no later than April 1 of each year.
2 So
3 So
in original. Two subsecs. (d) have been enacted.
in original. The semicolon probably should be a period.
Page 1003
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(e) ‘‘Appropriate congressional committees’’ defined
As used in this section, the term ‘‘appropriate
congressional committees’’ means the Committee on Foreign Relations and the Committee on
Appropriations of the Senate and the Committee
on International Relations and the Committee
on Appropriations of the House of Representatives.
(Pub. L. 90–629, ch. 2, § 25, as added Pub. L. 94–329,
title II, § 209(a), June 30, 1976, 90 Stat. 739;
amended Pub. L. 95–384, § 18, Sept. 26, 1978, 92
Stat. 740; Pub. L. 96–92, §§ 13, 14, Oct. 29, 1979, 93
Stat. 706; Pub. L. 96–533, title I, §§ 104(c), 107(d),
Dec. 16, 1980, 94 Stat. 3133, 3137; Pub. L. 97–113,
title VII, § 732, Dec. 29, 1981, 95 Stat. 1557; Pub. L.
99–83, title I, §§ 112, 113, Aug. 8, 1985, 99 Stat. 198;
Pub. L. 104–164, title I, § 102(d), July 21, 1996, 110
Stat. 1423; Pub. L. 105–118, title V, § 519, Nov. 26,
1997, 111 Stat. 2411; Pub. L. 107–228, div. B, title
XII, § 1232, Sept. 30, 2002, 116 Stat. 1433; Pub. L.
111–266, title I, § 104(c), Oct. 8, 2010, 124 Stat.
2799.)
REFERENCES IN TEXT
Subsection (d) of this section, referred to in subsec.
(a), preceding par. (1), probably means the subsec. (d)
added by section 113(2) of Pub. L. 99–83, relating to
transmittal of information to Congress.
This chapter, referred to in subsecs. (a)(1), (5)(B), (6)
and (d), was in the original ‘‘this Act’’, and this chapter, referred to in subsec. (a)(11), was in the original
‘‘the Arms Export Control Act’’, both of which mean
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.
Subsection (d) of this section, referred to in subsec.
(a)(5)(B), probably means the subsec. (d) added by section 112(b) of Pub. L. 99–83, defining cash flow financing.
The Foreign Assistance Act of 1961, referred to in subsec. (a)(11), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424,
as amended, which is classified principally to chapter
32 (§ 2151 et seq.) 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.
AMENDMENTS
2010—Subsec. (a)(1). Pub. L. 111–266, § 104(c)(1), inserted ‘‘, as well as exports pursuant to a treaty referred to in section 2778(j)(1)(C)(i) of this title,’’ after
‘‘commercial exports under this chapter’’.
Subsec. (a)(2). Pub. L. 111–266, § 104(c)(2), inserted
‘‘, as well as exports pursuant to a treaty referred to in
section 2778(j)(1)(C)(i) of this title,’’ after ‘‘commercial
exports’’.
2002—Subsec. (a)(13), (14). Pub. L. 107–228 added par.
(13) and redesignated former par. (13) as (14).
1997—Subsec. (a). Pub. L. 105–118, § 519(1), substituted
‘‘appropriate congressional committees’’ for ‘‘Congress’’ in introductory provisions.
Subsec. (b). Pub. L. 105–118, § 519(2), substituted ‘‘any
of the congressional committees described in subsection (e) of this section’’ for ‘‘the Committee on Foreign Relations of the Senate or the Committee on Foreign Affairs of the House of Representatives’’.
Subsec. (e). Pub. L. 105–118, § 519(3), added subsec. (e).
1996—Subsec. (a)(12), (13). Pub. L. 104–164 added par.
(12) and redesignated former par. (12) as (13).
1985—Subsec. (a). Pub. L. 99–83, § 113(1), substituted
‘‘Except as provided in subsection (d) of this section,
no’’ for ‘‘No’’.
Subsec. (a)(5). Pub. L. 99–83, § 112(a), designated existing provisions as subpar. (A) and added subpar. (B).
Subsec. (d). Pub. L. 99–83, § 112(b), added subsec. (d)
defining ‘‘cash flow financing’’.
§ 2765
Pub. L. 99–83, § 113(2), added subsec. (d) relating to
transmittal of information to Congress.
1981—Subsec. (a). Pub. L. 97–113, in provision preceding par. (1), required transmission of the report no later
than Feb. 1 of each year and substituted provision for
annual presentation materials for programs proposed
for next fiscal year for provision for presentation materials for programs proposed for each fiscal year.
Subsec. (a)(1). Pub. L. 97–113 added par. (1) which incorporated provisions of former subsec. (d)(1) of this
section. See subsec. (d) amendment note. Former par.
(1) covered in par. (3).
Subsec. (a)(2). Pub. L. 97–113 added par. (2). Former
par. (2), which required the report to contain an estimate of amount of credits and guaranties expected to
be extended to each country under sections 2763 and
2764 of this title, covered in par. (5).
Subsec. (a)(3). Pub. L. 97–113 added par. (3) which incorporated provisions of former par. (1) requiring the
report to contain an estimate of amounts of expected
sales to each country under sections 2761 and 2762 of
this title, including detailed explanations of foreign
policy and United States national security considerations in expected sales to each country, and (5) requiring inclusion of an arms control impact statement for
each purchasing country, covering (A) an analysis of
the relationship between expected sales to each country and arms control efforts relating to that country,
and (B) the impact of such expected sales on the stability of the region that included the purchasing country.
Former par. (3) redesignated (7).
Subsec. (a)(4). Pub. L. 97–113 added par. (4) which incorporated provisions of former subsec. (e), which had
required executive estimates of international arms
traffic, including estimates on an annual basis of the
sale and delivery of weapons and weapons-related defense equipment by all major arms suppliers to all
major recipient countries during the preceding three
years. Former par. (4) covered in par. (8).
Subsec. (a)(5). Pub. L. 97–113 added par. (5) which incorporated provisions of former par. (2) requiring the
report to contain an estimate of amount of credits and
guaranties expected to be extended to each country
under sections 2763 and 2764 of this title. Former par. (5)
covered in par. (3).
Subsec. (a)(6). Pub. L. 97–113 added par. (6).
Subsec. (a)(7). Pub. L. 97–113 redesignated former par.
(3) as (7).
Subsec. (a)(8). Pub. L. 97–113 added par. (8), which incorporated provisions of former par. (4), requiring the
report to contain a list of all findings in effect on date
of its transmission made by the President pursuant to
section 2753(a)(1) of this title, together with a full and
complete justification for each finding, explaining how
sales to each country with respect to which findings
were made would strengthen the security of the United
States and promote world peace.
Subsecs. (a)(9) to (12). Pub. L. 97–113 added pars. (9) to
(12).
Subsec. (b). Pub. L. 97–113 substituted ‘‘Committee on
Foreign Affairs’’ for ‘‘Committee on International Relations’’, and ‘‘with respect to any information’’ for
‘‘with respect to any estimate’’.
Subsec. (c). Pub. L. 97–113 substituted ‘‘Whenever the
President’’ for ‘‘In the event the President’’.
Subsec. (d). Pub. L. 97–113 incorporated in subsec. (a)
introductory text and subsec. (a)(1), provisions of
former subsec. (d)(1) which had required transmission
to the Speaker of the House and the chairman of the
Senate Foreign Relations Committee the Arms Sales
Proposal covering sales and licensed commercials exports under this chapter (other than such transactions
to members of North Atlantic Treaty Organization,
Japan, Australia, and New Zealand) of major weapons
or weapons-related defense equipment for $7,000,000 or
more, or of any other weapons or similar equipment for
$25,000,000 or more, which were eligible for approval
during fiscal year beginning October 1 of such year and
had required identification in the reports of sales and
licensed commercial exports deemed most likely actu-
§ 2766
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
ally to result in issuance of a letter of offer or of an export license during such fiscal year, and subsec. (d)(2)
which had required Presidential six month written notifications of Congress of any change in the Arms Sales
Proposal for such fiscal year, together with reasons
therefor.
Subsec. (e). Pub. L. 97–113 incorporated, in subsec. (a)
introductory text and subsec. (a)(4), provisions of
former subsec. (e) which had required transmission to
Congress on or before Nov. 15 of each year executive estimates of international arms traffic, including estimates on an annual basis of the sale and delivery of
weapons and weapons-related defense equipment by all
major arms suppliers to all major recipient countries
during the preceding three years.
1980—Subsec. (a)(3) to (5). Pub. L. 96–533, § 104(c),
added par. (3) and redesignated former pars. (3) and (4)
as (4) and (5), respectively.
Subsec. (d)(1). Pub. L. 96–533, § 107(d), included coverage of licensed commercial exports and substituted
‘‘letter of offer or of an export license’’ for ‘‘letter of
offer’’.
1979—Subsec. (d). Pub. L. 96–92, § 13(1)–(4), designated
existing provision as par. (1), substituted ‘‘major weapons or weapons-related defense equipment’’ for ‘‘major
defense equipment’’ and ‘‘weapons or weapons-related
defense equipment’’ for ‘‘defense articles or defense
services’’, required identification of sales likely to result in issuance of a letter of offer in the furnished reports, and added par. (2).
Subsec. (e). Pub. L. 96–92, § 14, added subsec. (e).
1978—Subsec. (c). Pub. L. 95–384, § 18(b), substituted
‘‘subsection (a) or (b) of this section’’ for ‘‘this section’’.
Subsec. (d). Pub. L. 95–384, § 18(a), added subsec. (d).
CHANGE OF NAME
Committee on International Relations of House of
Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution
No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of State, with Secretary of Defense and
Director of Arms Control and Disarmament Agency required to assist in preparation of materials for presentation to Congress, by section 1(g) of Ex. Ord. No. 11958,
Jan. 18, 1977, 42 F.R. 4311, as amended, set out as a note
under section 2751 of this title.
§ 2766. Security assistance surveys
(a) Statement of findings and policy
The Congress finds that security assistance
surveys prepared by the United States for foreign countries have had a significant impact on
subsequent military procurement decisions of
those countries. It is the policy of the United
States that the results of security assistance
surveys conducted by the United States clearly
do not represent a commitment by the United
States to provide any military equipment to any
foreign country. Further, recommendations in
such surveys should be consistent with the arms
export control policy provided for in this chapter.
(b) Reporting requirements
As part of the quarterly report required by
section 2776(a) of this title, the President shall
include a list of all security assistance surveys
Page 1004
authorized during the preceding calendar quarter, specifying the country with respect to
which the survey was or will be conducted, the
purpose of the survey, and the number of United
States Government personnel who participated
or will participate in the survey.
(c) Submission of surveys to Congress
Upon a request of the chairman of the Committee on Foreign Affairs of the House of Representatives or the chairman of the Committee
on Foreign Relations of the Senate, the President shall submit to that committee copies of
security assistance surveys conducted by United
States Government personnel.
(d) ‘‘Security assistance surveys’’ defined
As used in this section, the term ‘‘security assistance surveys’’ means any survey or study
conducted in a foreign country by United States
Government personnel for the purpose of assessing the needs of that country for security assistance, and includes defense requirement surveys,
site surveys, general surveys or studies, and engineering assessment surveys.
(Pub. L. 90–629, ch. 2, § 26, as added Pub. L. 95–384,
§ 19, Sept. 26, 1978, 92 Stat. 740; amended Pub. L.
99–83, title I, § 114, Aug. 8, 1985, 99 Stat. 198; Pub.
L. 103–437, § 9(a)(7), Nov. 2, 1994, 108 Stat. 4588.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (a), 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.
AMENDMENTS
1994—Subsec. (c). Pub. L. 103–437 substituted ‘‘Foreign
Affairs’’ for ‘‘International Relations’’.
1985—Pub. L. 99–83, § 114(a)(1), substituted ‘‘Security
assistance’’ for ‘‘Defense requirement’’ in section
catchline.
Subsecs. (a), (b). Pub. L. 99–83, § 114(a)(2), substituted
‘‘security assistance’’ for ‘‘defense requirement’’ wherever appearing.
Subsec. (c). Pub. L. 99–83, § 114(a)(2), (b), substituted
‘‘submit to that committee copies of security assistance surveys’’ for ‘‘grant that committee access to defense requirement surveys’’.
Subsec. (d). Pub. L. 99–83, § 114(a)(3), added subsec. (d).
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
§ 2767. Authority of President to enter into cooperative projects with friendly foreign countries
(a) Authority of President
The President may enter into a cooperative
project agreement with the North Atlantic
Treaty Organization or with one or more member countries of that Organization.
(b) Definitions
As used in this section—
(1) the term ‘‘cooperative project’’, in the
case of an agreement with the North Atlantic
Treaty Organization or with one or more
member countries of that Organization, means
Page 1005
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
a jointly managed arrangement, described in a
written agreement among the parties, which is
undertaken in order to further the objectives
of standardization, rationalization, and interoperability of the armed forces of North Atlantic Treaty Organization member countries
and which provides—
(A) for one or more of the other participants to share with the United States the
costs of research on and development, testing, evaluation, or joint production (including follow-on support) of certain defense articles;
(B) for concurrent production in the
United States and in another member country of a defense article jointly developed in
accordance with subparagraph (A); or
(C) for procurement by the United States
of a defense article or defense service from
another member country or for procurement
by the United States of munitions from the
North Atlantic Treaty Organization or a
subsidiary of such organization;
(2) the term ‘‘cooperative project’’, in the
case of an agreement entered into under subsection (j) of this section, means a jointly
managed arrangement, described in a written
agreement among the parties, which is undertaken in order to enhance the ongoing multinational effort of the participants to improve
the conventional defense capabilities of the
participants and which provides—
(A) for one or more of the other participants to share with the United States the
costs of research on and development, testing, evaluation, or joint production (including follow-on support) of certain defense articles;
(B) for concurrent production in the
United States and in the country of another
participant of a defense article jointly developed in accordance with subparagraph (A);
or
(C) for procurement by the United States
of a defense article or defense service from
another participant to the agreement; and
(3) the term ‘‘other participant’’ means a
participant in a cooperative project other than
the United States.
(c) Agreements for equitable share of costs; limiting nature of agreements
Each agreement for a cooperative project shall
provide that the United States and each of the
other participants will contribute to the cooperative project its equitable share of the full cost
of such cooperative project and will receive an
equitable share of the results of such cooperative project. The full costs of such cooperative
project shall include overhead costs, administrative costs, and costs of claims. The United
States and the other participants may contribute their equitable shares of the full cost of such
cooperative project in funds or in defense articles or defense services needed for such cooperative project. Military assistance and financing
received from the United States Government
may not be used by any other participant to provide its share of the cost of such cooperative
project. Such agreements shall provide that no
§ 2767
requirement shall be imposed by a participant
for worksharing or other industrial or commercial compensation in connection with such
agreement that is not in accordance with such
agreement.
(d) Contractual or other obligation; preconditions
The President may enter into contracts or
incur other obligations for a cooperative project
on behalf of the other participants, without
charge to any appropriation or contract authorization, if each of the other participants in the
cooperative project agrees (1) to pay its equitable share of the contract or other obligation,
and (2) to make such funds available in such
amounts and at such times as may be required
by the contract or other obligation and to pay
any damages and costs that may accrue from
the performance of or cancellation of the contract or other obligation in advance of the time
such payments, damages, or costs are due.
(e) Waiver of charges; administrative surcharges
(1) For those cooperative projects entered into
on or after the effective date 1 of the International Security and Development Cooperation
Act of 1985, the President may reduce or waive
the charge or charges which would otherwise be
considered appropriate under section 2761(e) of
this title in connection with sales under sections 2761 and 2762 of this title when such sales
are made as part of such cooperative project, if
the other participants agree to reduce or waive
corresponding charges.
(2) Notwithstanding provisions of section
2761(e)(1)(A) and section 2792(b) of this title, administrative surcharges shall not be increased
on other sales made under this chapter in order
to compensate for reductions or waivers of such
surcharges under this section. Funds received
pursuant to such other sales shall not be available to reimburse the costs incurred by the
United States Government for which reduction
or waiver is approved by the President under
this section.
(f) Transmission of numbered certification to
Congress respecting proposed agreement;
contents
Not less than 30 days before a cooperative
project agreement is signed on behalf of the
United States, the President shall transmit to
the Speaker of the House of Representatives, the
chairman of the Committee on Foreign Relations of the Senate, and the chairman of the
Committee on Armed Services of the Senate, a
numbered certification with respect to such proposed agreement, setting forth—
(1) a detailed description of the cooperative
project with respect to which the certification
is made;
(2) an estimate of the quantity of the defense
articles expected to be produced in furtherance of such cooperative project;
(3) an estimate of the full cost of the cooperative project, with an estimate of the part of
the full cost to be incurred by the United
States Government, including an estimate of
the costs as a result of waivers of section 2
1 See
2 So
References in Text note below.
in original. Probably should be ‘‘sections’’.
§ 2767
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
2761(e)(1)(A) and 2792(b) of this title, for its
participation in such cooperative project and
an estimate of that part of the full costs to be
incurred by the other participants;
(4) an estimate of the dollar value of the
funds to be contributed by the United States
and each of the other participants on behalf of
such cooperative project;
(5) a description of the defense articles and
defense services expected to be contributed by
the United States and each of the other participants on behalf of such cooperative
project;
(6) a statement of the foreign policy and national security benefits anticipated to be derived from such cooperative project; and
(7) to the extent known, whether it is likely
that prime contracts will be awarded to particular prime contractors or that subcontracts
will be awarded to particular subcontractors
to comply with the proposed agreement.
(g) Reporting and certification requirements applicable
In the case of a cooperative project with a
North Atlantic Treaty Organization country,
section,3 2776(b) of this title shall not apply to
sales made under section 2761 or 2762 of this title
and to production and exports made pursuant to
cooperative projects under this section, and section 2776(c) of this title shall not apply to the issuance of licenses or other approvals under section 2778 of this title, if such sales are made,
such production and exports ensue, or such licenses or approvals are issued, as part of a cooperative project.
(h) Statutory provisions applicable to sales
The authority under this section is in addition
to the authority under sections 2761 and 2762 of
this title and under any other provision of law.
(i) Agreements entered into before October 1,
1985
(1) With the approval of the Secretary of State
and the Secretary of Defense, a cooperative
agreement which was entered into by the United
States before the effective date 4 of the amendment to this section made by the International
Security and Development Cooperation Act of
1985 and which meets the requirements of this
section as so amended may be treated on and
after such date as having been made under this
section as so amended.
(2) Notwithstanding the amendment made 5 to
this section made by the International Security
and Development Cooperation Act of 1985,
projects entered into under the authority of this
section before the effective date 4 of that amendment may be carried through to conclusion in
accordance with the terms of this section as in
effect immediately before the effective date 4 of
that amendment.
(j) Cooperative project agreements with friendly
foreign countries not members of NATO
(1) The President may enter into a cooperative
project agreement with any friendly foreign
3 So
in original. The comma probably should not appear.
References in Text note below.
5 So in original. The word ‘‘made’’ probably should not appear.
4 See
Page 1006
country not a member of the North Atlantic
Treaty Organization under the same general
terms and conditions as the President is authorized to enter into such an agreement with one or
more member countries of the North Atlantic
Treaty Organization if the President determines
that the cooperative project agreement with
such country would be in the foreign policy or
national security interests of the United States.
(2) Omitted.
(Pub. L. 90–629, ch. 2, § 27, as added Pub. L. 96–92,
§ 15, Oct. 29, 1979, 93 Stat. 706; amended Pub. L.
99–83, title I, § 115(a), Aug. 8, 1985, 99 Stat. 199;
Pub. L. 99–145, title XI, § 1102(a)(1), (5), Nov. 8,
1985, 99 Stat. 708, 710; Pub. L. 99–661, div. A, title
XI, § 1103(a), title XIII, § 1342(e), Nov. 14, 1986, 100
Stat. 3962, 3991; Pub. L. 100–180, div. A, title X,
§ 1022, Dec. 4, 1987, 101 Stat. 1144; Pub. L. 102–484,
div. A, title VIII, § 843(a), Oct. 23, 1992, 106 Stat.
2468.)
REFERENCES IN TEXT
The effective date of the International Security and
Development Cooperation Act of 1985 and the effective
date of the amendment to this section made by the
International Security and Development Cooperation
Act of 1985, referred to in subsecs. (e)(1) and (i), respectively, is October 1, 1985, see section 1301 of Pub. L.
99–83, set out as an Effective Date of 1985 Amendment
note under section 2151–1 of this title.
This chapter, referred to in subsec. (e)(2), 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.
The amendment made to this section made by the
International Security and Development Cooperation
Act of 1985, referred to in subsec. (i), means the general
amendment of this section by section 115(a) of Pub. L.
99–83. See 1985 Amendment note below.
CODIFICATION
Subsec. (j)(2) of this section, which required the
President to submit to certain committees of Congress
an annual report specifying countries eligible, and criteria used to determine eligibility, for participation in
cooperative project agreements under subsec. (j)(1) of
this section, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set
out as a note under section 1113 of Title 31, Money and
Finance. See, also, page 39 of House Document No.
103–7.
AMENDMENTS
1992—Subsec. (c). Pub. L. 102–484 substituted ‘‘costs,
administrative costs, and costs of claims’’ for ‘‘and administrative costs’’.
1987—Subsec. (b)(1)(C). Pub. L. 100–180 inserted ‘‘or for
procurement by the United States of munitions from
the North Atlantic Treaty Organization or a subsidiary
of such organization’’ after ‘‘member country’’.
1986—Pub. L. 99–661, § 1342(e), repealed section
1102(a)(1) of Pub. L. 99–145 and the amendments made
by that section, and provided that this section shall
apply as if that section had never been enacted. See
1985 Amendments note below.
Pub. L. 99–661, § 1103(a)(2), substituted ‘‘Authority of
President to enter into cooperative projects with
friendly foreign countries’’ for ‘‘North Atlantic Treaty
Organization cooperative projects’’ in section catchline.
Subsec. (b)(1). Pub. L. 99–661, § 1103(a)(1)(A)(i), inserted
‘‘, in the case of an agreement with the North Atlantic
Treaty Organization or with one or more member countries of that Organization,’’ in introductory provisions.
Page 1007
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
Subsec.
(b)(2),
(3).
Pub.
L.
99–661,
§ 1103(a)(1)(A)(ii)–(iv), added par. (2) and redesignated
former par. (2) as (3).
Subsec. (f)(3). Pub. L. 99–661, § 1103(a)(1)(B), inserted
‘‘, including an estimate of the costs as a result of
waivers of section 2761(e)(1)(A) and 2792(b) of this
title,’’.
Subsec. (g). Pub. L. 99–661, § 1103(a)(1)(C), substituted
‘‘In the case of a cooperative project with a North Atlantic Treaty Organization country, section,’’ for ‘‘Section’’.
Subsec. (j). Pub. L. 99–661, § 1103(a)(1)(D), added subsec. (j).
1985—Pub. L. 99–83 amended section generally, substituting in subsec. (a) provisions relating to authority
of the President, for provisions defining ‘‘cooperative
project’’, substituting in subsec. (b) provisions defining
‘‘cooperative project’’ and ‘‘other participant’’, for provisions relating to reduction or waiver of charges, sales
not subject to compensatory increases in administrative surcharges, and contribution requirements, substituting in subsec. (c) provisions relating to agreements for equitable share of costs and limiting the nature of such agreements, for provisions relating to
transmission of numbered certification of proposed
agreement, contents of such certification, and statutory provisions applicable to sales, and adding subsecs.
(d) to (i).
Pub. L. 99–145, § 1102(a)(1), which enacted a general
amendment of this section similar to that provided in
Pub. L. 99–83 was repealed. See 1986 Amendments note
above and former section 1105(a)(5) of Pub. L. 99–145 set
out as a Repeals; Effective Date note under section 2752
of this title.
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of Defense, with Secretary of Defense required to consult with Secretary of State in implementing delegated functions, by section 1(f) of Ex. Ord.
No. 11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out
as a note under section 2751 of this title.
ASSESSMENT OF RISK ASSOCIATED WITH DEVELOPMENT
OF MAJOR WEAPON SYSTEMS TO BE PROCURED
UNDER COOPERATIVE PROJECTS WITH FRIENDLY FOREIGN COUNTRIES
Pub. L. 112–81, div. A, title VIII, § 836, Dec. 31, 2011, 125
Stat. 1508, provided that:
‘‘(a) ASSESSMENT OF RISK REQUIRED.—
‘‘(1) IN GENERAL.—Not later than two days after the
President transmits a certification to Congress pursuant to section 27(f) of the Arms Export Control Act
(22 U.S.C. 2767(f)) regarding a proposed cooperative
project agreement that is expected to result in the
award of a Department of Defense contract for the
engineering and manufacturing development of a
major weapon system, the Secretary of Defense shall
submit to the Chairmen of the Committees on Armed
Services of the Senate and the House of Representatives a report setting forth a risk assessment of the
proposed cooperative project.
‘‘(2) PREPARATION.—The Secretary shall prepare
each report required by paragraph (1) in consultation
with the Under Secretary of Defense for Acquisition,
Technology, and Logistics, the Assistant Secretary of
Defense for Research and Engineering, and the Director of Cost Assessment and Program Evaluation of
the Department of Defense.
‘‘(b) ELEMENTS.—The risk assessment on a cooperative project under subsection (a) shall include the following:
‘‘(1) An assessment of the design, technical, manufacturing, and integration risks associated with de-
§ 2769
veloping and procuring the weapon system to be procured under the cooperative project.
‘‘(2) A statement identifying any termination liability that would be incurred under the development
contract to be entered into under subsection (a)(1),
and a statement of the extent to which such termination liability would not be fully funded by appropriations available or sought in the fiscal year in
which the agreement for the cooperative project is
signed on behalf of the United States.
‘‘(3) An assessment of the advisability of incurring
any unfunded termination liability identified under
paragraph (2) given the risks identified in the assessment under paragraph (1).
‘‘(4) A listing of which, if any, requirements associated with the oversight and management of a major
defense acquisition program (as prescribed under Department of Defense Instruction 5000.02 or related authorities) will be waived, or in any way modified, in
carrying out the development contract to be entered
into under [subsection] (a)(1), and a full explanation
why such requirements need to be waived or modified.
‘‘(c) DEFINITIONS.—In this section:
‘‘(1) The term ‘engineering and manufacturing development’ has the meaning given that term in Department of Defense Instruction 5000.02.
‘‘(2) The term ‘major weapon system’ has the meaning given that term in section 2379(f) of title 10,
United States Code.’’
§ 2767a. Repealed. Pub. L. 101–189, div. A, title IX,
§ 931(d)(2), Nov. 29, 1989, 103 Stat. 1535
Section, Pub. L. 99–661, div. A, title XI, § 1105, Nov. 14,
1986, 100 Stat. 3965; Pub. L. 100–456, div. A, title X, § 1007,
Sept. 29, 1988, 102 Stat. 2040, related to cooperative research and development with major non-NATO allies.
See section 2350a of Title 10, Armed Forces.
§ 2768. Repealed. Pub. L. 104–106, div. A, title X,
§ 1064(a), Feb. 10, 1996, 110 Stat. 445
Section, Pub. L. 90–629, ch. 2, § 28, as added Pub. L.
96–92, § 16(a), Oct. 29, 1979, 93 Stat. 708; amended Pub. L.
97–113, title I, § 101(b), Dec. 29, 1981, 95 Stat. 1520; Pub.
L. 100–461, title V, § 588(a), Oct. 1, 1988, 102 Stat. 2268–51,
related to reports on price and availability estimates.
SUBCHAPTER II–A—FOREIGN MILITARY
CONSTRUCTION SALES
§ 2769. Foreign military construction sales
The President may sell design and construction services to any eligible foreign country or
international organization if such country or
international organization agrees to pay in
United States dollars not less than the full cost
to the United States Government of furnishing
such services. Payment shall be made to the
United States Government in advance of the
performance of such services by officers or employees of the United States Government. The
President may, without requirement for charge
to any appropriation or contract authorization
otherwise provided, enter into contracts for the
procurement of design and construction services
for sale under this section if such country or
international organization provides the United
States Government with a dependable undertaking (1) to pay the full amount of such contract which will assure the United States Government against any loss on the contract, and
(2) to make funds available in such amounts and
at such time as may be required to meet the
payments required by the contract and any dam-
§ 2770
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
ages and costs that may accrue from the cancellation of such contract, in advance of the
time such payments, damages, or costs are due.
(Pub. L. 90–629, ch. 2A, § 29, as added Pub. L.
96–533, title I, § 105(a), Dec. 16, 1980, 94 Stat. 3133.)
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of Defense by section 1(d) of Ex. Ord. No.
11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as
a note under section 2751 of this title.
SUBCHAPTER
II–B—SALES
TO
UNITED
STATES COMPANIES FOR INCORPORATION INTO END ITEMS
§ 2770. General authority
(a) Sale of defense articles and services by President to United States companies; restriction
on performance of services; reimbursement
credited to selling agency
Subject to the conditions specified in subsection (b) of this section, the President may, on
a negotiated contract basis, under cash terms (1)
sell defense articles at not less than their estimated replacement cost (or actual cost in the
case of services), or (2) procure or manufacture
and sell defense articles at not less than their
contract or manufacturing cost to the United
States Government, to any United States company for incorporation into end items (and for
concurrent or follow-on support) to be sold by
such a company either (i) on a direct commercial basis to a friendly foreign country or international organization pursuant to an export license or approval under section 2778 of this title
or (ii) in the case of ammunition parts subject
to subsection (b) of this section, using commercial practices which restrict actual delivery directly to a friendly foreign country or international organization pursuant to approval
under section 2778 of this title. The President
may also sell defense services in support of such
sales of defense articles, subject to the requirements of this subchapter: Provided, however,
That such services may be performed only in the
United States. The amount of reimbursement
received from such sales shall be credited to the
current applicable appropriation, fund, or account of the selling agency of the United States
Government.
(b) Conditions of sale
Defense articles and defense services may be
sold, procured and sold, or manufactured and
sold, pursuant to subsection (a) of this section
only if (1) the end item to which the articles
apply is to be procured for the armed forces of
a friendly country or international organization, (2) the articles would be supplied to the
prime contractor as government-furnished
equipment or materials if the end item were
being procured for the use of the United States
Armed Forces, and (3) the articles and services
are available only from United States Government sources or are not available to the prime
contractor directly from United States commercial sources at such times as may be required to
meet the prime contractor’s delivery schedule.
Page 1008
(c) ‘‘Defense articles’’ and ‘‘defense services’’ defined
For the purpose of this section, the terms ‘‘defense articles’’ and ‘‘defense services’’ mean defense articles and defense services as defined in
section 2794(3) and (4) of this title.
(Pub. L. 90–629, ch. 2B, § 30, as added Pub. L.
97–392, § 1, Dec. 29, 1982, 96 Stat. 1962; amended
Pub. L. 101–165, title IX, § 9097, Nov. 21, 1989, 103
Stat. 1150.)
AMENDMENTS
1989—Subsec. (a). Pub. L. 101–165 inserted ‘‘either (i)’’
after ‘‘such a company’’ in first sentence and inserted
before period at end of first sentence ‘‘or (ii) in the case
of ammunition parts subject to subsection (b) of this
section, using commercial practices which restrict actual delivery directly to a friendly foreign country or
international organization pursuant to approval under
section 2778 of this title’’.
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of Defense by section 1(d) of Ex. Ord. No.
11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as
a note under section 2751 of this title.
SUBCHAPTER II–C—EXCHANGE OF
TRAINING AND RELATED SUPPORT
§ 2770a. Exchange of training and related support
(a) Authorization; eligibility; scope
Subject to subsection (b) of this section, the
President may provide training and related support to military and civilian defense personnel
of a friendly foreign country or an international
organization. Such training and related support
shall be provided by a Secretary of a military
department and may include the provision of
transportation, food services, health services,
and logistics and the use of facilities and equipment.
(b) Reciprocal arrangements; reimbursement
Training and related support may be provided
under this section only pursuant to an agreement or other arrangement providing for the
provision by the recipient foreign country or
international organization, on a reciprocal
basis, of comparable training and related support to military and civilian personnel under
the jurisdiction of the Secretary of the military
department providing the training and related
support under this section. Such reciprocal
training and related support must be provided
within a reasonable period of time (which may
not be more than one year) of the provision of
training and related support by the United
States. To the extent that a foreign country or
international organization to which training
and related support is provided under this section does not provide such comparable training
and related support to the United States within
a reasonable period of time, that country or
international organization shall be required to
reimburse the United States for the full costs of
the training and related support provided by the
United States.
(c) Regulations
Training and related support under this section shall be provided under regulations prescribed by the President.
Page 1009
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(d) Report to Congress
Not later than February 1 of each year, the
President shall submit to the Congress a report
on the activities conducted pursuant to this section during the preceding fiscal year, including
the estimated full costs of the training and related support provided by the United States to
each country and international organization and
the estimated value of the training and related
support provided to the United States by that
country or international organization.
(Pub. L. 90–629, ch. 2C, § 30A, as added Pub. L.
99–83, title I, § 116, Aug. 8, 1985, 99 Stat. 201.)
EFFECTIVE DATE
Section effective Oct. 1, 1985, see section 1301 of Pub.
L. 99–83, set out as an Effective Date of 1985 Amendment note under section 2151–1 of this title.
§ 2771
(Pub. L. 90–629, ch. 3, § 31, Oct. 22, 1968, 82 Stat.
1324; Pub. L. 91–672, § 2, Jan. 12, 1971, 84 Stat. 2053;
Pub. L. 92–226, pt. IV, § 401(a), (b), Feb. 7, 1972, 86
Stat. 32; Pub. L. 93–189, § 25(5), (6), Dec. 17, 1973,
87 Stat. 730; Pub. L. 93–559, § 45(a)(6), (7), Dec. 30,
1974, 88 Stat. 1815; Pub. L. 94–329, title II,
§ 210(a)–(c)(1), June 30, 1976, 90 Stat. 740; Pub. L.
95–92, § 19, Aug. 4, 1977, 91 Stat. 623; Pub. L.
95–384, § 20, Sept. 26, 1978, 92 Stat. 741; Pub. L.
96–92, § 17(a), Oct. 29, 1979, 93 Stat. 708; Pub. L.
96–533, title I, §§ 104(d), 105(b)(3), 106(a)–(c), Dec.
16, 1980, 94 Stat. 3133–3136; Pub. L. 97–113, title I,
§ 105, Dec. 29, 1981, 95 Stat. 1521; Pub. L. 98–151,
§ 101(b)(2), Nov. 14, 1983, 97 Stat. 969, 970; Pub. L.
99–83, title I, § 101(a), (b), Aug. 8, 1985, 99 Stat.
193; Pub. L. 101–513, title V, § 596(c), Nov. 5, 1990,
104 Stat. 2062; Pub. L. 104–164, title I, §§ 101,
104(b)(2)(C), July 21, 1996, 110 Stat. 1422, 1427.)
DELEGATION OF FUNCTIONS
REFERENCES IN TEXT
Functions of President under this section delegated
to Secretary of Defense by section 1(d) of Ex. Ord. No.
11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as
a note under section 2751 of this title.
This chapter, referred to in subsec. (a), 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.
SUBCHAPTER III—MILITARY EXPORT
CONTROLS
§ 2771. Military sales authorizations and ceilings
(a) Authorization for foreign military sales credit
and guarantee program
There are authorized to be appropriated to the
President to carry out this chapter $5,371,000,000
for fiscal year 1986 and $5,371,000,000 for fiscal
year 1987. Credits may not be extended under
section 2763 of this title in an amount, and loans
may not be guaranteed under section 2764(a) of
this title in a principal amount, which exceeds
any maximum amount which may be established
with respect to such credits or such loan guarantees in legislation appropriating funds to carry
out this chapter. Unobligated balances of funds
made available pursuant to this section are
hereby authorized to be continued available by
appropriations legislation to carry out this
chapter.
(b) Aggregate ceilings on credit sales; availability at concessional rates of interest
(1) The total amount of credits extended under
section 2763 of this title shall not exceed
$5,371,000,000 for fiscal year 1986 and $5,371,000,000
for fiscal year 1987.
(2) Of the aggregate amount of financing provided under this section, not more than
$553,900,000 for fiscal year 1986 and not more than
$553,900,000 for fiscal year 1987 may be made
available at concessional rates of interest. If a
country is released from its contractual liability
to repay the United States Government with respect to financing provided under this section,
such financing shall not be considered to be financing provided at concessional rates of interest for purposes of the limitation established by
this paragraph.
(c) Interest rates
Loans available under section 2763 of this title
shall be provided at rates of interest that are
not less than the current average market yield
on outstanding marketable obligations of the
United States of comparable maturities.
AMENDMENTS
1996—Subsec. (c). Pub. L. 104–164, § 101, amended subsec. (c) generally. Prior to amendment, subsec. (c) read
as follows: ‘‘For fiscal year 1986 and fiscal year 1987, the
principal amount of credits provided under section 2763
of this title at market rates of interest with respect to
Greece, the Republic of Korea, the Philippines, Portugal, Spain, Thailand, and Turkey shall (if and to the
extent each country so desires) be repaid in not more
than twenty years, following a grace period of ten
years on repayment of principal.’’
Subsec. (d). Pub. L. 104–164, § 104(b)(2)(C), struck out
subsec. (d) which read as follows: ‘‘The aggregate acquisition cost to the United States of excess defense articles ordered by the President in any fiscal year after
fiscal year 1976 for delivery to foreign countries or
international organizations under the authority of
chapter 2 of part II of the Foreign Assistance Act of
1961 or pursuant to sales under this chapter may not exceed $250,000,000 (exclusive of ships and their onboard
stores and supplies transferred in accordance with law,
and of any defense articles with respect to which the
President submits a certification under section 2776(b)
of this title.).’’
1990—Subsec. (d). Pub. L. 101–513 inserted ‘‘, and of
any defense articles with respect to which the President submits a certification under section 2776(b) of
this title.’’ after ‘‘law’’.
1985—Subsec. (a). Pub. L. 99–83, § 101(a), substituted
provisions authorizing appropriations of $5,371,000,000
for fiscal years 1986 and 1987, for provisions authorizing
appropriations of $800,000,000 for fiscal years 1982 and
1983.
Subsec. (b). Pub. L. 99–83, § 101(b), amended subsec. (b)
generally, substituting provisions relating to maximum amount of credits authorized for fiscal years 1986
and 1987 and maximum amounts of such credits available at concessional rates of interest for such years, for
provisions relating to maximum amounts of credits (or
participations in credits) and loans guaranteed for fiscal years 1982 and 1983, and credit, etc., programs with
respect to specific countries.
Subsec. (c). Pub. L. 99–83, § 101(b), amended subsec. (c)
generally, substituting provisions relating to extended
repayment terms for credits provided for fiscal years
1986 and 1987, for provisions relating to funds made
available for fiscal year 1984 to finance procurement of
defense articles, etc., by Israel.
1983—Subsec. (b)(3). Pub. L. 98–151 amended par. (3)
generally, substituting provisions authorizing not less
§ 2771
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
than $1,700,000,000 for fiscal year 1984 as available to Israel, of which not less than $850,000,000 shall be available as credits under section 2763 of this title, and provisions relating to availability of funds part of the
total aggregate credit ceiling made available to Israel,
for provisions authorizing not less than $1,400,000,000 for
the fiscal years 1982 and 1983 as available to Israel, of
which not less than $550,000,000 for each year shall be
available as credits.
Subsec. (b)(5). Pub. L. 98–151 substituted ‘‘1984’’ for
‘‘1982 and for the fiscal year 1983’’.
Subsec. (b)(6). Pub. L. 98–151 amended par. (6) generally, inserting provisions relating to availability to
Egypt for fiscal year 1984 of not less than $900,000,000 of
the total principal amount of loans guaranteed, and
substituting provisions authorizing not less than
$465,000,000 for fiscal year 1984, for provisions authorizing not less than $200,000,000 for fiscal years 1982 and
1983.
Subsec. (c). Pub. L. 98–151 substituted provisions relating to applicability to fiscal year 1984, for provisions
relating to applicability to fiscal years 1982 and 1983,
and substituted ‘‘$850,000,000’’ for ‘‘$550,000,000’’.
1981—Subsec. (a). Pub. L. 97–113, § 105(a), substituted
‘‘$800,000,000 for the fiscal year 1982 and $800,000,000 for
the fiscal year 1983’’ for ‘‘$500,000,000 for the fiscal year
1981’’.
Subsec. (b). Pub. L. 97–113, § 105(b), prescribed in par.
(1) $800,000,000 limit on credits for fiscal years 1982 and
1983, striking out $500,000,000 limit for fiscal year 1981,
in par. (2) $3,269,525,000 limit on total principal amount
of guaranteed loans for fiscal years 1982 and 1983, striking out $2,616,000,000 limit for fiscal year 1981, and in
par. (3) $1,400,000,000 minimum for Israel in fiscal years
1982 and 1983, the same sum made available for fiscal
year 1981, including requirement of $550,000,000 minimum of such funds for such fiscal years as credits
under section 2763 of this title, striking out requirement for Israeli use of $200,000,000 of available funds
only for relocation costs from the Sinai, and added
pars. (4) to (7).
Subsec. (c). Pub. L. 97–113, § 105(c)(1)–(3), substituted
‘‘fiscal year 1982 and for the fiscal year 1983’’ for ‘‘fiscal
year 1981’’, ‘‘$550,000,000’’ for ‘‘$500,000,000’’, and ‘‘each
such year’’ for ‘‘such year’’.
1980—Subsec. (a). Pub. L. 96–533, §§ 104(d), 106(a),
placed a limit on extension of credits and loan guaranties not to exceed amount established in appropriation
of funds to carry out this chapter and substituted
‘‘$500,000,000 for the fiscal year 1981’’ for ‘‘$673,500,000 for
the fiscal year 1980’’.
Subsec. (b). Pub. L. 96–533, § 106(b), in revising subsec.
(b), substituted par. (1) and (2) limits on amount of
credits or participations in credits and loan guaranties
for fiscal year 1981 in amounts of $500,000,000 and
$2,616,000,000 for prior combined sum limited to
$2,235,000,000 for fiscal year 1980 and substituted par. (3)
earmarking minimum of $1,400,000,000 only for Israel for
fiscal year 1981, including availability of $200,000,000 for
costs associated with relocation of Israeli forces from
the Sinai for prior prescription of minimum sum of
$1,000,000,000 as available only for Israel.
Subsec. (c). Pub. L. 96–533, §§ 105(b)(3), 106(c), substituted ‘‘defense articles, defense services, and design
and construction services’’ for ‘‘defense articles and defense services’’ in two places, ‘‘1981’’ for ‘‘1980’’ in two
places, and ‘‘$500,000,000’’ for ‘‘one-half’’.
1979—Subsec. (a). Pub. L. 96–92, § 17(a)(1), substituted
‘‘$673,500,000 for the fiscal year 1980’’ for ‘‘$682,000,000 for
the fiscal year 1978 and $674,300,000 for the fiscal year
1979’’.
Subsec. (b). Pub. L. 96–92, § 17(a)(2), substituted
‘‘$2,235,000,000 for the fiscal year 1980, of which’’ for
‘‘$2,152,350,000 for the fiscal year 1978 and $2,085,500,000
for the fiscal year 1979, of which amount for each such
year’’.
Subsec. (c). Pub. L. 96–92, § 17(a)(3), substituted ‘‘fiscal
year 1980’’ for ‘‘fiscal year 1979’’.
Subsec. (d). Pub. L. 96–92, § 17(a)(4), substituted
‘‘$250,000,000’’ for ‘‘$150,000,000’’.
Page 1010
1978—Subsec. (a). Pub. L. 95–384, § 20(a), substituted
‘‘$682,000,000 for the fiscal year 1978 and $674,300,000 for
the fiscal year 1979’’ for ‘‘$677,000,000 for the fiscal year
1978’’.
Subsec. (b). Pub. L. 95–384, § 20(b), substituted
‘‘$2,152,350,000 for the fiscal year 1978 and $2,085,500,000
for the fiscal year 1979, of which amount for each such
year’’ for ‘‘$2,102,350,000 for the fiscal year 1978, of
which’’.
Subsec. (c). Pub. L. 95–384, § 20(c), substituted ‘‘fiscal
year 1979’’ for ‘‘fiscal year 1978’’.
Subsec. (d). Pub. L. 95–384, § 20(d), substituted
‘‘$150,000,000’’ for ‘‘$100,000,000’’.
1977—Subsec. (a). Pub. L. 95–92, § 19(1), substituted
‘‘$677,000,000 for the fiscal year 1978’’ for ‘‘$1,039,000,000
for the fiscal year 1976 and not to exceed $740,000,000 for
the fiscal year 1977’’.
Subsec. (b). Pub. L. 95–92, § 19(2), substituted
‘‘$2,102,350,000 for the fiscal year 1978’’ for ‘‘$2,374,700,000
for the fiscal year 1976, of which not less than
$1,500,000,000 shall be available only for Israel, and shall
not exceed $2,022,100,000 for the fiscal year 1977’’.
Subsec. (c). Pub. L. 95–92, § 19(3), substituted ‘‘year
1978’’ for ‘‘years 1976 and 1977’’ and struck out ‘‘each’’
before ‘‘such year’’.
1976—Subsec. (a). Pub. L. 94–329, § 210(a), substituted
provisions authorizing appropriations not to exceed
$1,039,000,000 for the fiscal year 1976 and not to exceed
$740,000,000 for the fiscal year 1977, for provisions authorizing appropriations not to exceed $405,000,000 for
the fiscal year 1975.
Subsec. (b). Pub. L. 94–329, § 210(b), substituted provisions setting out the foreign military sales credit ceiling of $2,374,700,000 for the fiscal year 1976, of which not
less than $1,500,000,000 shall be available only for Israel,
and $2,022,100,000 for the fiscal year 1977, of which not
less than $1,000,000,000 shall be available only for Israel,
for provisions setting out such ceiling of $872,500,000 for
the fiscal year 1975, of which amount not less than
$300,000,000 shall be available to Israel only, and struck
out provisions relating to obligation of $100,000,000 for
financing procurement of defense articles and services
by Israel and for release of Israel from contractual liability to repay United States Government for the defense article and services so financed.
Subsecs. (c), (d). Pub. L. 94–329, § 210(c)(1), added subsecs. (c) and (d).
1974—Subsec. (a). Pub. L. 93–559, § 45(a)(6), substituted
‘‘$405,000,000 for the fiscal year 1975’’ for ‘‘$325,000,000 for
the fiscal year 1974’’.
Subsec. (b). Pub. L. 93–559, § 45(a)(7), substituted
‘‘$872,500,000 for the fiscal year 1975’’ for ‘‘$730,000,000 for
the fiscal year 1974’’ and provided for obligation of
$100,000,000 for financing procurement of defense articles and defense services by Israel and for release of Israel from contractual liability to repay the United
States Government for the defense articles and defense
services so financed.
1973—Subsec. (a). Pub. L. 93–189, § 25(5), substituted
provision authorizing appropriation of not more than
$325,000,000 for the fiscal year 1974, for provision authorizing appropriation of not more than $400,000,000 for the
fiscal year 1972.
Subsec. (b). Pub. L. 93–189, § 25(6), substituted provisions setting out the foreign military sales credit ceiling of $730,000,000 for the fiscal year 1974, of which
amount not less than $300,000,000 shall be made available to Israel, for provisions setting out such ceiling of
$550,000,000 for the fiscal year 1972, of which amount not
less than $300,000,000 shall be made available to Israel,
and such amount to exclude credits covered by guaranties issued under section 2764(b) of this title.
1972—Subsec. (a). Pub. L. 92–226, § 401(a), substituted
provision authorizing appropriation of not more than
$400,000,000 for the fiscal year 1972, for provisions authorizing appropriation of not more than $250,000,000 for
each of the fiscal years 1970 and 1971.
Subsec. (b). Pub. L. 92–226, § 401(b), substituted provisions setting out the foreign military sales credit ceiling of $550,000,000 for the fiscal year 1972, of which
Page 1011
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
amount not less than $300,000,000 shall be made available to Israel, for provisions setting out such ceiling of
$340,000,000 for the fiscal years 1970 and 1971.
1971—Subsec. (a). Pub. L. 91–672, § 2(1), substituted
provisions authorizing appropriation of not more than
$250,000,000 for each of the fiscal years 1970 and 1971 for
provisions authorizing appropriation of not more than
$296,000,000 for the fiscal year 1969.
Subsec. (b). Pub. L. 91–672, § 2(2), substituted provisions setting out the foreign military sales credit ceiling of $340,000,000 for the fiscal years 1970 and 1971 for
provisions setting out such ceiling of $296,000,000 for the
fiscal year 1969.
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
CEILINGS ON LOANS FOR GREECE, SUDAN, AND TURKEY,
FISCAL YEAR 1980; REPAYMENT PERIOD; GRACE PERIOD FOR REPAYMENT OF PRINCIPAL
Section 17(b) of Pub. L. 96–92 provided that: ‘‘Of the
principal amount of loans guaranteed for the fiscal
year 1980 under section 24 of the Arms Export Control
Act [section 2764 of this title]—
‘‘(1) with respect to Turkey, not to exceed
$50,000,000,
‘‘(2) with respect to Greece, not to exceed
$42,000,000, and
‘‘(3) with respect to Sudan, not to exceed $25,000,000,
shall be repaid in not less than 20 years, following a
grace period of 10 years on repayment of principal.’’
§ 2772. Repealed. Pub. L. 102–429, title I, § 112(e),
Oct. 21, 1992, 106 Stat. 2195
Section, Pub. L. 90–629, ch. 3, § 32, Oct. 22, 1968, 82
Stat. 1325, prohibited certain military export financing
by Export-Import Bank.
§ 2773. Restraint in arms sales to Sub-Saharan
Africa
It is the sense of the Congress that the problems of Sub-Saharan Africa are primarily those
of economic development and that United States
policy should assist in limiting the development
of costly military conflict in that region. Therefore, the President shall exercise restraint in
selling defense articles and defense services, and
in providing financing for sales of defense articles and defense services, to countries in SubSaharan Africa.
(Pub. L. 90–629, ch. 3, § 33, Oct. 22, 1968, 82 Stat.
1325; Pub. L. 91–672, § 3, Jan. 12, 1971, 84 Stat. 2053;
Pub. L. 92–226, pt. IV, § 401(c), (d), Feb. 7, 1972, 86
Stat. 32; Pub. L. 93–189, § 25(7)–(9), Dec. 17, 1973, 87
Stat. 731; Pub. L. 93–559, § 45(a)(8), Dec. 30, 1974,
88 Stat. 1815; Pub. L. 96–92, § 18, Oct. 29, 1979, 93
Stat. 709.)
§ 2775
1973—Subsec. (a). Pub. L. 93–189, § 25(7), struck out reference to cash sales pursuant to sections 2761 and 2762
of this title reference to exclusion of credits covered by
guaranties issued under section 2764(b) of this title, and
reference to the face amount of contracts of guaranty
issued under section 2764(a) and (b) of this title, inserted reference to the principal amount of loans guaranteed under section 2764(a) of this title, and substituted ‘‘$150,000,000’’ for ‘‘$100,000,000’’.
Subsec. (b). Pub. L. 93–189, § 25(8), struck out reference
to cash sales pursuant to sections 2761 and 2762 of this
title, reference to exclusion of credits covered by guaranties issued under section 2764(b) of this title, and reference to the face amount of contracts of guaranty issued under section 2764(a) and (b) of this title, and inserted reference to the principal amount of loans guaranteed under section 2764(a) of this title.
Subsec. (c). Pub. L. 93–189, § 25(9), struck out subsec.
(c) which provided for Presidential waiver of limitations on amounts authorized under this section and set
forth geographical limitations on the aggregate
amounts of military assistance to be made available
and percentage deviations from such ceiling amounts.
1972—Subsec. (a). Pub. L. 92–226, § 401(c), substituted
‘‘$100,000,000’’ for ‘‘$75,000,000’’.
Subsec. (c). Pub. L. 92–226, § 401(d), substituted provisions for waiver of limitations when overriding requirements of the national security of the United States justify waiver for prior provisions for such a waiver when
important to the security of the United States, required a written report with reasons for findings and
statement in detail of expenditures when in excess of
applicable geographical limitations, and prescribed percentage limitation for exceeding aggregate of geographical ceiling limitation.
1971—Subsec. (a). Pub. L. 91–672, § 3(1), made fiscal
year 1969 ceiling of $75,000,000 for Latin American countries a continuing ceiling applicable in each fiscal year.
Subsec. (b). Pub. L. 91–672, § 3(2), made fiscal year 1969
ceiling of $40,000,000 for African countries a continuing
ceiling applicable in each fiscal year.
§ 2774. Foreign military sales credit standards
The President shall establish standards and
criteria for credit and guaranty transactions
under sections 2763 and 2764 of this title in accordance with the foreign, national security,
and financial policies of the United States.
(Pub. L. 90–629, ch. 3, § 34, Oct. 22, 1968, 82 Stat.
1325.)
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of State, with prior concurrence of Secretary of Defense and Secretary of the Treasury required to extent standards and criteria for credit and
guaranty transactions are based upon national security
or financial policies, by section 1(h) of Ex. Ord. No.
11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as
a note under section 2751 of this title.
AMENDMENTS
§ 2775. Foreign military sales to less developed
countries
1979—Pub. L. 96–92 substituted provisions respecting
restraint in arms sales to Sub-Saharan Africa for provisions imposing regional ceilings on foreign military
sales to African countries and Presidential waiver and
report thereof to Congress.
1974—Subsec. (a). Pub. L. 93–559, § 45(a)(8)(A), (B), repealed subsec. (a) which prescribed a ceiling of
$150,000,000 in each fiscal year on the total amount of
military assistance, credits, participations in credits,
guaranteed loans, and loans and sales under section
7307 of Title 10, for Latin American countries, and redesignated subsec. (b) as (a).
Subsec. (b). Pub. L. 93–559, § 45(a)(8)(B), (C), added subsec. (b) and redesignated former subsec. (b) as (a).
(a) When the President finds that any economically less developed country is diverting
development assistance furnished pursuant to
the Foreign Assistance Act of 1961, as amended
[22 U.S.C. 2151 et seq.], or sales under the Food
for Peace Act, as amended [7 U.S.C. 1691 et seq.],
to military expenditures, or is diverting its own
resources to unnecessary military expenditures,
to a degree which materially interferes with its
development, such country shall be immediately
ineligible for further sales and guarantees under
sections 2761, 2762, 2763, and 2764 of this title,
§ 2776
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
until the President is assured that such diversion will no longer take place.
(b) Repealed. Pub. L. 93–559, § 45(a)(5), Dec. 30,
1974, 88 Stat. 1814.
(Pub. L. 90–629, ch. 3, § 35, Oct. 22, 1968, 82 Stat.
1325; Pub. L. 93–559, § 45(a)(5), Dec. 30, 1974, 88
Stat.
1814;
Pub.
L.
110–246,
title
III,
§ 3001(b)(1)(A), (2)(T), June 18, 2008, 122 Stat. 1820,
1821.)
REFERENCES IN TEXT
The Foreign Assistance Act of 1961, as amended, referred to in subsec. (a), is Pub. L. 87–195, Sept. 4, 1961,
75 Stat. 424, as amended, which is classified principally
to chapter 32 (§ 2151 et seq.) 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.
The Food for Peace Act, as amended, referred to in
subsec. (a), is act July 10, 1954, ch. 469, 68 Stat. 454,
which is classified principally to chapter 41 (§ 1691 et
seq.) of Title 7, Agriculture. For complete classification
of this Act to the Code, see Short Title note set out
under section 1691 of Title 7 and Tables.
AMENDMENTS
2008—Subsec. (a). Pub. L. 110–246 substituted ‘‘Food
for Peace Act’’ for ‘‘Agricultural Trade Development
and Assistance Act of 1954’’.
1974—Subsec. (b). Pub. L. 93–559 repealed subsec. (b)
which provided for Presidential reports to Congress respecting sales and guaranties to less developed countries.
EFFECTIVE DATE OF 2008 AMENDMENT
Amendment by Pub. L. 110–246 effective May 22, 2008,
see section 4(b) of Pub. L. 110–246, set out as an Effective Date note under section 8701 of Title 7, Agriculture.
DELEGATION OF FUNCTIONS
Functions of President under subsec. (a) of this section delegated to Secretary of State by section 1(i) of
Ex. Ord. No. 11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as a note under section 2751 of this title.
§ 2776. Reports and certifications to Congress on
military exports
(a) Report by President; contents
The President shall transmit to the Speaker of
the House of Representatives and to the chairman of the Committee on Foreign Relations of
the Senate not more than sixty days after the
end of each quarter an unclassified report (except that any material which was transmitted in
classified form under subsection (b)(1) or (c)(1) of
this section may be contained in a classified addendum to such report, and any letter of offer
referred to in paragraph (1) of this subsection
may be listed in such addendum unless such letter of offer has been the subject of an unclassified certification pursuant to subsection (b)(1) of
this section, and any information provided
under paragraph (11) of this subsection may also
be provided in a classified addendum) containing—
(1) a listing of all letters of offer to sell any
major defense equipment for $1,000,000 or more
under this chapter to each foreign country and
international organization, by category, if
such letters of offer have not been accepted or
canceled;
(2) a listing of all such letters of offer that
have been accepted during the fiscal year in
Page 1012
which such report is submitted, together with
the total value of all defense articles and defense services sold to each foreign country and
international organization during such fiscal
year;
(3) the cumulative dollar amounts, by foreign country and international organization,
of sales credit agreements under section 2763
of this title and guaranty agreements under
section 2764 of this title made during the fiscal
year in which such report is submitted;
(4) a numbered listing of all licenses and approvals for the export to each foreign country
and international organization during such
fiscal year of commercially sold major defense
equipment, by category, sold for $1,000,000 or
more, together with the total value of all defense articles and defense services so licensed
for each foreign country and international organization, setting forth with respect to the
listed major defense equipment—
(A) the items to be exported under the license,
(B) the quantity and contract price of each
such item to be furnished, and
(C) the name and address of the ultimate
user of each such item;
(5) projections of the dollar amounts, by foreign country and international organization,
of sales expected to be made under sections
2761 and 2762 of this title in the quarter of the
fiscal year immediately following the quarter
for which such report is submitted;
(6) a projection with respect to all sales expected to be made to each country and organization for the remainder of the fiscal year in
which such report is transmitted;
(7) a description of each payment, contribution, gift, commission, or fee reported to the
Secretary of State under section 2779 of this
title, including (A) the name of the person who
made such payment, contribution, gift, commission, or fee; (B) the name of any sales
agent or other person to whom such payment,
contribution, gift, commission, or fee was
paid; (C) the date and amount of such payment, contribution, gift, commission, or fee;
(D) a description of the sale in connection
with which such payment, contribution, gift,
commission, or fee was paid; and (E) the identification of any business information considered confidential by the person submitting it
which is included in the report;
(8) a listing of each sale under section 2769 of
this title during the quarter for which such report is made, specifying (A) the purchaser, (B)
the United States Government department or
agency responsible for implementing the sale,
(C) an estimate of the dollar amount of the
sale, and (D) a general description of the real
property facilities to be constructed pursuant
to such sale;
(9) a listing of the consents to third-party
transfers of defense articles or defense services
which were granted, during the quarter for
which such report is submitted, for purposes of
section 2753(a)(2) of this title, the regulations
issued under section 2778 of this title, or section 2314(a)(1)(B) of this title, if the value (in
terms of original acquisition cost) of the defense articles or defense services to be transferred is $1,000,000 or more;
Page 1013
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(10) a listing of all munitions items (as defined in section 2780(l)(1) of this title) which
were sold, leased, or otherwise transferred by
the Department of Defense to any other department, agency, or other entity of the
United States Government during the quarter
for which such report is submitted (including
the name of the recipient Government entity
and a discussion of what that entity will do
with those munitions items) if—
(A) the value of the munitions items was
$250,000 or more; or
(B) the value of all munitions items transferred to that Government department,
agency, or other entity during that quarter
was $250,000 or more;
excluding munitions items transferred (i) for
disposition or use solely within the United
States, or (ii) for use in connection with intelligence activities subject to reporting requirements under title V of the National Security
Act of 1947 (50 U.S.C. 413 et seq.; relating to
congressional oversight of intelligence activities);
(11) a report on all concluded government-togovernment agreements regarding foreign coproduction of defense articles of United States
origin and all other concluded agreements involving coproduction or licensed production
outside of the United States of defense articles
of United States origin (including coproduction memoranda of understanding or agreement) that have not been previously reported
under this subsection, which shall include—
(A) the identity of the foreign countries,
international organizations, or foreign firms
involved;
(B) a description and the estimated value
of the articles authorized to be produced,
and an estimate of the quantity of the articles authorized to be produced;
(C) a description of any restrictions on
third-party transfers of the foreign-manufactured articles; and
(D) if any such agreement does not provide
for United States access to and verification
of quantities of articles produced overseas
and their disposition in the foreign country,
a description of alternative measures and
controls incorporated in the coproduction or
licensing program to ensure compliance with
restrictions in the agreement on production
quantities and third-party transfers; and
(12) a report on all exports of significant
military equipment for which information has
been provided pursuant to section 2778(i) of
this title.
For each letter of offer to sell under paragraphs
(1) and (2), the report shall specify (i) the foreign
country or international organization to which
the defense article or service is offered or was
sold, as the case may be; (ii) the dollar amount
of the offer to sell or the sale and the number of
defense articles offered or sold, as the case may
be; (iii) a description of the defense article or
service offered or sold, as the case may be; and
(iv) the United States Armed Force or other
agency of the United States which is making the
offer to sell or the sale, as the case may be.
§ 2776
(b) Letter of offer to sell defense articles, services, design and construction services, or
major equipment; submission of numbered
Presidential certification and additional
statement; contents; emergency justification
statement; enhancements or upgrades in sensitivity of technology or capability of major
defense articles, equipment, or services
(1) Subject to paragraph (6), in the case of any
letter of offer to sell any defense articles or
services under this chapter for $50,000,000 or
more, any design and construction services for
$200,000,000 or more, or any major defense equipment for $14,000,000 or more, before such letter of
offer is issued, the President shall submit to the
Speaker of the House of Representatives and to
the chairman of the Committee on Foreign Relations of the Senate a numbered certification
with respect to such offer to sell containing the
information specified in clauses (i) through (iv)
of subsection (a) of this section, or (in the case
of a sale of design and construction services) the
information specified in clauses (A) through (D)
of paragraph (9) 1 of subsection (a) of this section, and a description, containing the information specified in paragraph (8) 1 of subsection (a)
of this section, of any contribution, gift, commission, or fee paid or offered or agreed to be
paid in order to solicit, promote, or otherwise to
secure such letter of offer. Such numbered certifications shall also contain an item, classified
if necessary, identifying the sensitivity of technology contained in the defense articles, defense
services, or design and construction services,
proposed to be sold, and a detailed justification
of the reasons necessitating the sale of such articles or services in view of the sensitivity of
such technology. In a case in which such articles
or services listed on the Missile Technology
Control Regime Annex are intended to support
the design, development, or production of a Category I space launch vehicle system (as defined
in section 2797c of this title), such report shall
include a description of the proposed export and
rationale for approving such export, including
the consistency of such export with United
States missile nonproliferation policy. Each
such numbered certification shall contain an
item indicating whether any offset agreement is
proposed to be entered into in connection with
such letter of offer to sell (if known on the date
of transmittal of such certification). In addition,
the President shall, upon the request of such
committee or the Committee on Foreign Affairs
of the House of Representatives, transmit
promptly to both such committees a statement
setting forth, to the extent specified in such request—
(A) a detailed description of the defense articles, defense services, or design and construction services to be offered, including a brief
description of the capabilities of any defense
article to be offered;
(B) an estimate of the number of officers and
employees of the United States Government
and of United States civilian contract personnel expected to be needed in such country to
carry out the proposed sale;
1 See
References in Text note below.
§ 2776
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(C) the name of each contractor expected to
provide the defense article, defense service, or
design and construction service proposed to be
sold and a description of any offset agreement
with respect to such sale;
(D) an evaluation, prepared by the Secretary
of State in consultation with the Secretary of
Defense and the Director of Central Intelligence, of the manner, if any, in which the
proposed sale would—
(i) contribute to an arms race;
(ii) support international terrorism;
(iii) increase the possibility of an outbreak
or escalation of conflict;
(iv) prejudice the negotiation of any arms
controls; or
(v) adversely affect the arms control policy of the United States;
(E) the reasons why the foreign country or
international organization to which the sale is
proposed to be made needs the defense articles, defense services, or design and construction services which are the subject of such sale
and a description of how such country or organization intends to use such defense articles,
defense services, or design and construction
services;
(F) an analysis by the President of the impact of the proposed sale on the military
stocks and the military preparedness of the
United States;
(G) the reasons why the proposed sale is in
the national interest of the United States;
(H) an analysis by the President of the impact of the proposed sale on the military capabilities of the foreign country or international
organization to which such sale would be
made;
(I) an analysis by the President of how the
proposed sale would affect the relative military strengths of countries in the region to
which the defense articles, defense services, or
design and construction services which are the
subject of such sale would be delivered and
whether other countries in the region have
comparable kinds and amounts of defense articles, defense services, or design and construction services;
(J) an estimate of the levels of trained personnel and maintenance facilities of the foreign country or international organization to
which the sale would be made which are needed and available to utilize effectively the defense articles, defense services, or design and
construction services proposed to be sold;
(K) an analysis of the extent to which comparable kinds and amounts of defense articles,
defense services, or design and construction
services are available from other countries;
(L) an analysis of the impact of the proposed
sale on United States relations with the countries in the region to which the defense articles, defense services, or design and construction services which are the subject of such sale
would be delivered;
(M) a detailed description of any agreement
proposed to be entered into by the United
States for the purchase or acquisition by the
United States of defense articles, defense services, design and construction services, or defense equipment, or other articles, services, or
Page 1014
equipment of the foreign country or international organization in connection with, or
as consideration for, such letter of offer, including an analysis of the impact of such proposed agreement upon United States business
concerns which might otherwise have provided
such articles, services, or equipment to the
United States, an estimate of the costs to be
incurred by the United States in connection
with such agreement compared with costs
which would otherwise have been incurred, an
estimate of the economic impact and unemployment which would result from entering
into such proposed agreement, and an analysis
of whether such costs and such domestic economic impact justify entering into such proposed agreement;
(N) the projected delivery dates of the defense articles, defense services, or design and
construction services to be offered;
(O) a detailed description of weapons and
levels of munitions that may be required as
support for the proposed sale; and
(P) an analysis of the relationship of the
proposed sale to projected procurements of the
same item.
A certification transmitted pursuant to this
subsection shall be unclassified, except that the
information specified in clause (ii) and the details of the description specified in clause (iii) of
subsection (a) of this section may be classified if
the public disclosure thereof would be clearly
detrimental to the security of the United
States, in which case the information shall be
accompanied by a description of the damage to
the national security that could be expected to
result from public disclosure of the information.
The letter of offer shall not be issued, with respect to a proposed sale to the North Atlantic
Treaty Organization, any member country of
such Organization, Japan, Australia, the Republic of Korea, Israel, or New Zealand, if the Congress, within fifteen calendar days after receiving such certification, or with respect to a proposed sale to any other country or organization,
if the Congress within thirty calendar days after
receiving such certification, enacts a joint resolution prohibiting the proposed sale, unless the
President states in his certification that an
emergency exists which requires such sale in the
national security interests of the United States.
If the President states in his certification that
an emergency exists which requires the proposed
sale in the national security interest of the
United States, thus waiving the congressional
review requirements of this subsection, he shall
set forth in the certification a detailed justification for his determination, including a description of the emergency circumstances which necessitate the immediate issuance of the letter of
offer and a discussion of the national security
interests involved.
(2) Any such joint resolution 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, except that for purposes of consideration of
any joint resolution with respect to the North
Atlantic Treaty Organization, any member
country of such Organization, Japan, Australia,
the Republic of Korea, Israel, or New Zealand, it
Page 1015
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
shall be in order in the Senate to move to discharge a committee to which such joint resolution was referred if such committee has not reported such joint resolution at the end of five
calendar days after its introduction.
(3) For the purpose of expediting the consideration and enactment of joint resolutions under
this subsection, a motion to proceed to the consideration of any such joint resolution after it
has been reported by the appropriate committee
shall be treated as highly privileged in the
House of Representatives.
(4) In addition to the other information required to be contained in a certification submitted to the Congress under this subsection, each
such certification shall cite any quarterly report submitted pursuant to section 2768 1 of this
title which listed a price and availability estimate, or a request for the issuance of a letter of
offer, which was a basis for the proposed sale
which is the subject of such certification.
(5)(A) If, before the delivery of any major defense article or major defense equipment, or the
furnishing of any defense service or design and
construction service, sold pursuant to a letter of
offer described in paragraph (1), the sensitivity
of technology or the capability of the article,
equipment, or service is enhanced or upgraded
from the level of sensitivity or capability described in the numbered certification with respect to an offer to sell such article, equipment,
or service, then, at least 45 days before the delivery of such article or equipment or the furnishing of such service, the President shall prepare and transmit to the chairman of the Committee on Foreign Affairs of the House of Representatives and the chairman of the Committee
on Foreign Relations of the Senate a report—
(i) describing the manner in which the technology or capability has been enhanced or upgraded and describing the significance of such
enhancement or upgrade; and
(ii) setting forth a detailed justification for
such enhancement or upgrade.
(B) The provisions of subparagraph (A) apply
to an article or equipment delivered, or a service
furnished, within ten years after the transmittal
to the Congress of a numbered certification with
respect to the sale of such article, equipment, or
service.
(C) Subject to paragraph (6), if the enhancement or upgrade in the sensitivity of technology
or the capability of major defense equipment,
defense articles, defense services, or design and
construction services described in a numbered
certification submitted under this subsection
costs $14,000,000 or more in the case of any major
defense equipment, $50,000,000 or more in the
case of defense articles or defense services, or
$200,000,000 or more in the case of design or construction services, then the President shall submit to the Speaker of the House of Representatives and the chairman of the Committee on
Foreign Relations of the Senate a new numbered
certification which relates to such enhancement
or upgrade and which shall be considered for
purposes of this subsection as if it were a separate letter of offer to sell defense equipment, articles, or services, subject to all of the requirements, restrictions, and conditions set forth in
this subsection. For purposes of this subpara-
§ 2776
graph, references in this subsection to sales
shall be deemed to be references to enhancements or upgrades in the sensitivity of technology or the capability of major defense equipment, articles, or services, as the case may be.
(D) For the purposes of subparagraph (A), the
term ‘‘major defense article’’ shall be construed
to include electronic devices, which if upgraded,
would enhance the mission capability of a weapons system.
(6) The limitation in paragraph (1) and the requirement in paragraph (5)(C) shall apply in the
case of a letter of offer to sell to a member country of the North Atlantic Treaty Organization
(NATO) or Australia, Japan, the Republic of
Korea, Israel, or New Zealand that does not authorize a new sales territory that includes any
country other than such countries only if the
letter of offer involves—
(A) the sale of major defense equipment
under this chapter for, or the enhancement or
upgrade of major defense equipment at a cost
of, $25,000,000 or more, as the case may be; and
(B) the sale of defense articles or services
for, or the enhancement or upgrade of defense
articles or services at a cost of, $100,000,000 or
more, as the case may be; or
(C) the sale of design and construction services for, or the enhancement or upgrade of design and construction services at a cost of,
$300,000,000 or more, as the case may be.
(c) Application for export license; submission of
numbered Presidential certification and
statement to Congress; contents; emergency
circumstances; joint resolution; exception;
notification of upgrades
(1) Subject to paragraph (5), in the case of an
application by a person (other than with regard
to a sale under section 2761 or section 2762 of
this title) for a license for the export of any
major defense equipment sold under a contract
in the amount of $14,000,000 or more or of defense
articles or defense services sold under a contract
in the amount of $50,000,000 or more (or, in the
case of a defense article that is a firearm controlled under category I of the United States
Munitions List, $1,000,000 or more), before issuing such license the President shall transmit to
the Speaker of the House of Representatives and
to the chairman of the Committee on Foreign
Relations of the Senate an unclassified numbered certification with respect to such application specifying (A) the foreign country or international organization to which such export will
be made, (B) the dollar amount of the items to
be exported, and (C) a description of the items to
be exported. Each such numbered certification
shall also contain an item indicating whether
any offset agreement is proposed to be entered
into in connection with such export and a description of any such offset agreement. In addition, the President shall, upon the request of
such committee or the Committee on Foreign
Affairs of the House of Representatives, transmit promptly to both such committees a statement setting forth, to the extent specified in
such request, a description of the capabilities of
the items to be exported, an estimate of the
total number of United States personnel expected to be needed in the foreign country con-
§ 2776
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
cerned in connection with the items to be exported and an analysis of the arms control impact pertinent to such application, prepared in
consultation with the Secretary of Defense and
a description from the person who has submitted
the license application of any offset agreement
proposed to be entered into in connection with
such export (if known on the date of transmittal
of such statement). In a case in which such articles or services are listed on the Missile Technology Control Regime Annex and are intended
to support the design, development, or production of a Category I space launch vehicle system
(as defined in section 2797c of this title), such report shall include a description of the proposed
export and rationale for approving such export,
including the consistency of such export with
United States missile nonproliferation policy. A
certification transmitted pursuant to this subsection shall be unclassified, except that the information specified in clause (B) and the details
of the description specified in clause (C) may be
classified if the public disclosure thereof would
be clearly detrimental to the security of the
United States, in which case the information
shall be accompanied by a description of the
damage to the national security that could be
expected to result from public disclosure of the
information.
(2) Unless the President states in his certification that an emergency exists which requires
the proposed export in the national security interests of the United States, a license for export
described in paragraph (1)—
(A) in the case of a license for an export to
the North Atlantic Treaty Organization, any
member country of that Organization or Australia, Japan, the Republic of Korea, Israel, or
New Zealand, shall not be issued until at least
15 calendar days after the Congress receives
such certification, and shall not be issued then
if the Congress, within that 15-day period, enacts a joint resolution prohibiting the proposed export;
(B) in the case of a license for an export of
a commercial communications satellite for
launch from, and by nationals of, the Russian
Federation, Ukraine, or Kazakhstan, shall not
be issued until at least 15 calendar days after
the Congress receives such certification, and
shall not be issued then if the Congress, within
that 15-day period, enacts a joint resolution
prohibiting the proposed export; and
(C) in the case of any other license, shall not
be issued until at least 30 calendar days after
the Congress receives such certification, and
shall not be issued then if the Congress, within
that 30-day period, enacts a joint resolution
prohibiting the proposed export.
If the President states in his certification that
an emergency exists which requires the proposed
export in the national security interests of the
United States, thus waiving the requirements of
subparagraphs (A) and (B) of this paragraph, he
shall set forth in the certification a detailed justification for his determination, including a description of the emergency circumstances which
necessitate the immediate issuance of the export license and a discussion of the national security interests involved.
(3)(A) Any joint resolution under this subsection shall be considered in the Senate in ac-
Page 1016
cordance with the provisions of section 601(b) of
the International Security Assistance and Arms
Export Control Act of 1976.
(B) For the purpose of expediting the consideration and enactment of joint resolutions under
this subsection, a motion to proceed to the consideration of any such joint resolution after it
has been reported by the appropriate committee
shall be treated as highly privileged in the
House of Representatives.
(4) The provisions of subsection (b)(5) of this
section shall apply to any equipment, article, or
service for which a numbered certification has
been transmitted to Congress pursuant to paragraph (1) in the same manner and to the same
extent as that subsection applies to any equipment, article, or service for which a numbered
certification has been transmitted to Congress
pursuant to subsection (b)(1) of this section. For
purposes of such application, any reference in
subsection (b)(5) of this section to ‘‘a letter of
offer’’ or ‘‘an offer’’ shall be deemed to be a reference to ‘‘a contract’’.
(5) In the case of an application by a person
(other than with regard to a sale under section
2761 or 2762 of this title) for a license for the export to a member country of the North Atlantic
Treaty Organization (NATO) or Australia,
Japan, the Republic of Korea, Israel, or New
Zealand that does not authorize a new sales territory that includes any country other than
such countries, the limitations on the issuance
of the license set forth in paragraph (1) shall
apply only if the license is for export of—
(A) major defense equipment sold under a
contract in the amount of $25,000,000 or more;
or
(B) defense articles or defense services sold
under a contract in the amount of $100,000,000
or more.
(6) The President shall notify the Speaker of
the House of Representatives and the Chairman
of the Committee on Foreign Relations of the
Senate at least 15 days prior to an export pursuant to a treaty referred to in section
2778(j)(1)(C)(i) of this title to which the provisions of paragraph (1) of this subsection would
apply absent an exemption granted under section 2778(j)(1) of this title, for which purpose
such notification shall contain information
comparable to that specified in paragraph (1) of
this subsection.
(d) Commercial technical assistance or manufacturing licensing agreements with non-North
Atlantic Treaty Organization member countries; submission of Presidential certification; contents
(1) In the case of an approval under section
2778 of this title of a United States commercial
technical assistance or manufacturing licensing
agreement which involves the manufacture
abroad of any item of significant combat equipment on the United States Munitions List, before such approval is given, the President shall
submit a certification with respect to such proposed commercial agreement in a manner similar to the certification required under subsection (c)(1) of this section containing comparable information, except that the last sentence of such subsection shall not apply to cer-
Page 1017
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
tifications submitted pursuant to this subsection.
(2) A certification under this subsection shall
be submitted—
(A) at least 15 days before approval is given
in the case of an agreement for or in a country
which is a member of the North Atlantic Treaty Organization or Australia, Japan, the Republic of Korea, Israel, or New Zealand; and
(B) at least 30 days before approval is given
in the case of an agreement for or in any other
country;
unless the President states in his certification
that an emergency exists which requires the immediate approval of the agreement in the national security interests of the United States.
(3) If the President states in his certification
that an emergency exists which requires the immediate approval of the agreement in the national security interests of the United States,
thus waiving the requirements of paragraph (4),
he shall set forth in the certification a detailed
justification for his determination, including a
description of the emergency circumstances
which necessitate the immediate approval of the
agreement and a discussion of the national security interests involved.
(4) Approval for an agreement subject to paragraph (1) may not be given under section 2778 of
this title if the Congress, within the 15-day or
30-day period specified in paragraph (2)(A) or (B),
as the case may be, enacts a joint resolution
prohibiting such approval.
(5)(A) Any joint resolution under paragraph (4)
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) For the purpose of expediting the consideration and enactment of joint resolutions under
paragraph (4), a motion to proceed to the consideration of any such joint resolution after it has
been reported by the appropriate committee
shall be treated as highly privileged in the
House of Representatives.
(6) The President shall notify the Speaker of
the House of Representatives and the Chairman
of the Committee on Foreign Relations of the
Senate at least 15 days prior to an export pursuant to a treaty referred to in section
2778(j)(1)(C)(i) of this title to which the provisions of paragraph (1) of this subsection would
apply absent an exemption granted under section 2778(j)(1) of this title, for which purpose
such notification shall contain information
comparable to that specified in paragraph (1) of
this subsection.
(e) Definitions
For purposes of this section—
(1) the term ‘‘offset agreement’’ means an
agreement, arrangement, or understanding between a United States supplier of defense articles or defense services and a foreign country
under which the supplier agrees to purchase or
acquire, or to promote the purchase or acquisition by other United States persons of, goods
or services produced, manufactured, grown, or
extracted, in whole or in part, in that foreign
country in consideration for the purchase by
the foreign country of defense articles or defense service from the supplier; and
§ 2776
(2) the term ‘‘United States person’’ means—
(A) an individual who is a national or permanent resident alien of the United States;
and
(B) any corporation, business association,
partnership, trust, or other juridical entity—
(i) organized under the laws of the
United States or any State, district, territory, or possession thereof; or
(ii) owned or controlled in fact by individuals described in subparagraph (A).
(f) Publication of arms sales certifications
The President shall cause to be published in a
timely manner in the Federal Register, upon
transmittal to the Speaker of the House of Representatives and to the chairman of the Committee on Foreign Relations of the Senate, the
full unclassified text of—
(1) each numbered certification submitted
pursuant to subsection (b) of this section;
(2) each notification of a proposed commercial sale submitted under subsection (c) of this
section; and
(3) each notification of a proposed commercial technical assistance or manufacturing licensing agreement submitted under subsection
(d) of this section.
(g) Confidentiality
Information relating to offset agreements provided pursuant to subparagraph (C) of the fifth
sentence of subsection (b)(1) of this section and
the second sentence of subsection (c)(1) of this
section shall be treated as confidential information in accordance with section 2411(c) of the
Appendix to title 50.
(h) Certification requirement relating to Israel’s
qualitative military edge
(1) In general
Any certification relating to a proposed sale
or export of defense articles or defense services under this section to any country in the
Middle East other than Israel shall include a
determination that the sale or export of the
defense articles or defense services will not adversely affect Israel’s qualitative military
edge over military threats to Israel.
(2) Qualitative military edge defined
In this subsection, the term ‘‘qualitative
military edge’’ means the ability to counter
and defeat any credible conventional military
threat from any individual state or possible
coalition of states or from non-state actors,
while sustaining minimal damages and casualties, through the use of superior military
means, possessed in sufficient quantity, including weapons, command, control, communication, intelligence, surveillance, and reconnaissance capabilities that in their technical
characteristics are superior in capability to
those of such other individual or possible coalition of states or non-state actors.
(Pub. L. 90–629, ch. 3, § 36, Oct. 22, 1968, 82 Stat.
1326; Pub. L. 93–189, § 25(10), Dec. 17, 1973, 87 Stat.
731; Pub. L. 93–559, § 45(a)(5), Dec. 30, 1974, 88
Stat. 1814; Pub. L. 94–329, title II, § 211(a), title
VI, § 604(a), June 30, 1976, 90 Stat. 740, 766; Pub.
L. 95–384, § 21, Sept. 26, 1978, 92 Stat. 741; Pub. L.
§ 2776
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
96–92, §§ 16(b), 19(a), (c), 20(b), Oct. 29, 1979, 93
Stat. 708–710; Pub. L. 96–533, title I, §§ 105(c), (d),
107(b), 109(f), Dec. 16, 1980, 94 Stat. 3134, 3136, 3138;
Pub. L. 97–113, title I, §§ 101(c)–(e), 102(b),
109(d)(2), Dec. 29, 1981, 95 Stat. 1520, 1526; Pub. L.
99–83, title I, §§ 117, 118, title XII, § 1209(c), Aug. 8,
1985, 99 Stat. 202, 203, 279; Pub. L. 99–247, § 1(b),
(c), Feb. 12, 1986, 100 Stat. 9; Pub. L. 101–222,
§§ 3(b), 7, Dec. 12, 1989, 103 Stat. 1896, 1899; Pub. L.
103–236, title VII, §§ 732, 735(a), (b), Apr. 30, 1994,
108 Stat. 503, 505, 506; Pub. L. 103–437, § 9(a)(7),
Nov. 2, 1994, 108 Stat. 4588; Pub. L. 104–164, title
I, §§ 141(c), (d), 155, July 21, 1996, 110 Stat. 1431,
1432, 1440; Pub. L. 104–201, div. A, title X,
§ 1045(a), Sept. 23, 1996, 110 Stat. 2644; Pub. L.
105–277, div. G, subdiv. A, title XII, § 1225(a)(1),
Oct. 21, 1998, 112 Stat. 2681–773; Pub. L. 106–113,
div. B, § 1000(a)(7) [div. B, title XII, §§ 1224, 1245,
title XIII, §§ 1301, 1302(b)], Nov. 29, 1999, 113 Stat.
1536, 1501A–498, 1501A–502, 1501A–510, 1501A–511;
Pub. L. 106–280, title I, § 102(c)(1), Oct. 6, 2000, 114
Stat. 849; Pub. L. 107–228, div. B, title XII,
§§ 1205(a), 1262(c), title XIV, § 1405(a)(2), Sept. 30,
2002, 116 Stat. 1427, 1434, 1457; Pub. L. 110–429,
title II, §§ 201(d), 203(b)(1), Oct. 15, 2008, 122 Stat.
4843, 4845; Pub. L. 111–266, title I, § 104(d), title
III, § 301(1), Oct. 8, 2010, 124 Stat. 2799, 2804.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a)(1) and (b)(1),
(6)(A), 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.
The National Security Act of 1947, referred to in subsec. (a)(10), is act July 26, 1947, ch. 343, 61 Stat. 495, as
amended. Title V of the National Security Act of 1947
is classified generally to subchapter III (§ 413 et seq.) of
chapter 15 of Title 50, War and National Defense. For
complete classification of this Act to the Code, see
Short Title note set out under section 401 of Title 50
and Tables.
Paragraphs (8) and (9) of subsection (a) of this section, referred to in subsec. (b)(1), were redesignated as
paragraphs (7) and (8), respectively, of subsection (a) of
this section by Pub. L. 107–228, div. B, title XII,
§ 1262(c)(2), Sept. 30, 2002, 116 Stat. 1434.
Section 601(b) of the International Security Assistance and Arms Export Control Act of 1976, referred to
in subsecs. (b)(2), (c)(3)(A), and (d)(5)(A), is section
601(b) of Pub. L. 94–329, June 30, 1976, 90 Stat. 729, which
made provision for expedited procedures in the Senate,
and was not classified to the Code.
Section 2768 of this title, referred to in subsec. (b)(4),
was repealed by Pub. L. 104–106, div. A, title X, § 1064(a),
Feb. 10, 1996, 110 Stat. 445.
AMENDMENTS
2010—Subsec. (b). Pub. L. 111–266, § 301(1), inserted ‘‘Israel,’’ before ‘‘or New Zealand’’ in concluding provisions of par (1), in par. (2), and in introductory provisions of par. (6).
Subsec. (c). Pub. L. 111–266, § 301(1), inserted ‘‘Israel,’’
before ‘‘or New Zealand’’ in par. (2)(A) and in introductory provisions of par. (5).
Subsec. (c)(6). Pub. L. 111–266, § 104(d)(1), added par.
(6).
Subsec. (d)(2)(A). Pub. L. 111–266, § 301(1), inserted ‘‘Israel,’’ before ‘‘or New Zealand’’.
Subsec. (d)(6). Pub. L. 111–266, § 104(d)(2), added par.
(6).
2008—Subsecs. (b), (c), (d)(2)(A). Pub. L. 110–429,
§ 203(b)(1), inserted ‘‘the Republic of Korea,’’ before ‘‘or
New Zealand’’ wherever appearing.
Subsec. (h). Pub. L. 110–429, § 201(d), added subsec. (h).
Page 1018
2002—Subsec. (a)(7) to (13). Pub. L. 107–228, § 1262(c),
redesignated pars. (8) to (13) as (7) to (12), respectively,
and struck out former par. (7) which read as follows:
‘‘an estimate of—
‘‘(A) the number of United States military personnel, the number of United States Government civilian
personnel, and the number of United States civilian
contract personnel, who were in each foreign country
at the end of that quarter, and
‘‘(B) the number of members of each such category
of personnel who were in each foreign country at any
time during that quarter,
in implementation of sales and commercial exports
under this chapter or of assistance under chapter 2, 5,
6, or 8 of part II of the Foreign Assistance Act of 1961,
including both personnel assigned to the country and
personnel temporarily in the country by detail or
otherwise;’’.
Subsec. (b)(1). Pub. L. 107–228, § 1405(a)(2)(A)(i), substituted ‘‘(1) Subject to paragraph (6), in the case of’’
for ‘‘(1) In the case of’’ in introductory provisions.
Subsec. (b)(5)(C). Pub. L. 107–228, § 1405(a)(2)(A)(ii),
substituted ‘‘Subject to paragraph (6), if’’ for ‘‘If’’.
Subsec. (b)(6). Pub. L. 107–228, § 1405(a)(2)(A)(iii),
added par. (6).
Subsec. (c)(1). Pub. L. 107–228, § 1405(a)(2)(B)(i), substituted ‘‘(1) Subject to paragraph (5), in the case of’’
for ‘‘(1) In the case of’’.
Pub. L. 107–228, § 1205(a), inserted ‘‘(or, in the case of
a defense article that is a firearm controlled under category I of the United States Munitions List, $1,000,000
or more)’’ after ‘‘$50,000,000 or more’’.
Subsec. (c)(5). Pub. L. 107–228, § 1405(a)(2)(B)(ii), added
par. (5).
2000—Subsec. (c)(2)(B), (C). Pub. L. 106–280 added subpar. (B) and redesignated former subpar. (B) as (C).
1999—Subsec. (a)(13). Pub. L. 106–113, § 1000(a)(7) [title
XIII, § 1302(b)], added par. (13).
Subsec. (b)(1). Pub. L. 106–113, § 1000(a)(7) [title XIII,
§ 1301(b)(1)], in sixth sentence, inserted before period at
end ‘‘, in which case the information shall be accompanied by a description of the damage to the national
security that could be expected to result from public
disclosure of the information’’.
Subsec. (b)(1)(C). Pub. L. 106–113, § 1000(a)(7) [title XII,
§ 1245(a)(1)], substituted ‘‘and a description of any offset
agreement with respect to such sale;’’ for ‘‘and a description from such contractor of any offset agreements proposed to be entered into in connection with
such sale (if known on the date of transmittal of such
statement);’’.
Subsec. (c)(1). Pub. L. 106–113, § 1000(a)(7) [title XIII,
§ 1301(b)(2)], in last sentence, inserted before period at
end ‘‘, in which case the information shall be accompanied by a description of the damage to the national
security that could be expected to result from public
disclosure of the information’’.
Pub. L. 106–113, § 1000(a)(7) [title XII, § 1245(a)(2)], in
second sentence, substituted ‘‘and a description of any
such offset agreement’’ for ‘‘(if known on the date of
transmittal of such certification)’’.
Subsec. (c)(4). Pub. L. 106–113, § 1000(a)(7) [title XII,
§ 1224], added par. (4).
Subsec. (e). Pub. L. 106–113, § 1000(a)(7) [title XII,
§ 1245(b)(1)], redesignated subsec. (e), relating to publication of arms sales certifications, as (f).
Subsec. (f). Pub. L. 106–113, § 1000(a)(7) [title XIII,
§ 1301(a)], which directed amendment of subsec. (e), relating to publication of arms sales certifications, by inserting ‘‘in a timely manner’’ after ‘‘to be published’’
and by substituting ‘‘the full unclassified text of—
‘‘(1) each numbered certification submitted pursuant to subsection (b) of this section;
‘‘(2) each notification of a proposed commercial sale
submitted under subsection (c) of this section; and
‘‘(3) each notification of a proposed commercial
technical assistance or manufacturing licensing
agreement submitted under subsection (d) of this section.’’ for ‘‘the full unclassified text of each numbered certification submitted pursuant to subsection
Page 1019
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(b) of this section and each notification of a proposed
commercial sale submitted under subsection (c) of
this section.’’, was executed by making the amendment in subsec. (f) to reflect the probable intent of
Congress and the redesignation of that subsec. (e) as
(f). See 1999 Amendment note below.
Pub. L. 106–113, § 1000(a)(7) [title XII, § 1245(b)(1)], redesignated subsec. (e), relating to publication of arms
sales certifications, as (f).
Subsec. (g). Pub. L. 106–113, § 1000(a)(7) [title XII,
§ 1245(b)(2)], added subsec. (g).
1998—Subsec. (b)(1)(D). Pub. L. 105–277, in introductory provisions, substituted ‘‘Secretary of State in consultation with the Secretary of Defense and the Director of Central Intelligence’’ for ‘‘Director of the Arms
Control and Disarmament Agency in consultation with
the Secretary of State and the Secretary of Defense’’.
1996—Subsec. (a)(12). Pub. L. 104–201 added par. (12).
Subsec. (c)(2)(A), (B). Pub. L. 104–164, § 141(c), amended
subpars. (A) and (B) generally. Prior to amendment,
subpars. (A) and (B) read as follows:
‘‘(A) shall not be issued until at least 30 calendar
days after the Congress receives such certification; and
‘‘(B) shall not be issued then if the Congress, within
such 30-day period, enacts a joint resolution prohibiting the proposed export, except that this subparagraph
does not apply with respect to a license issued for an
export to the North Atlantic Treaty Organization, any
member country of that Organization, Japan, Australia, or New Zealand.’’
Subsec. (d). Pub. L. 104–164, § 141(d), designated existing provisions as par. (1), struck out ‘‘for or in a country not a member of the North Atlantic Treaty Organization’’ after ‘‘manufacturing licensing agreement’’,
and added pars. (2) to (5).
Subsec. (e). Pub. L. 104–164, § 155, added subsec. (e) relating to publication of arms sales certifications.
1994—Subsec. (b)(1). Pub. L. 103–437 substituted ‘‘Foreign Affairs’’ for ‘‘International Relations’’.
Pub. L. 103–236, §§ 732(a)(1), 735(a), inserted after second sentence ‘‘In a case in which such articles or services listed on the Missile Technology Control Regime
Annex are intended to support the design, development,
or production of a Category I space launch vehicle system (as defined in section 2797c of this title), such report shall include a description of the proposed export
and rationale for approving such export, including the
consistency of such export with United States missile
nonproliferation policy. Each such numbered certification shall contain an item indicating whether any
offset agreement is proposed to be entered into in connection with such letter of offer to sell (if known on the
date of transmittal of such certification).’’
Subsec. (b)(1)(C). Pub. L. 103–236, § 732(a)(2), inserted
‘‘and a description from such contractor of any offset
agreements proposed to be entered into in connection
with such sale’’ after ‘‘sold’’.
Subsec. (c)(1). Pub. L. 103–437 substituted ‘‘Foreign
Affairs’’ for ‘‘International Relations’’.
Pub. L. 103–236, § 735(b), which directed amendment of
par. (1) by inserting after ‘‘in consultation with the
Secretary of Defense.’’ the following new sentence: ‘‘In
a case in which such articles or services are listed on
the Missile Technology Control Regime Annex and are
intended to support the design, development, or production of a Category I space launch vehicle system (as defined in section 2797c of this title), such report shall include a description of the proposed export and rationale
for approving such export, including the consistency of
such export with United States missile nonproliferation policy.’’, was executed by making the insertion
after ‘‘in consultation with the Secretary of Defense
and a description from the person who has submitted
the license application of any offset agreement proposed to be entered into in connection with such export
(if known on the date of transmittal of such statement).’’ to reflect the probable intent of Congress and
the intervening amendment by Pub. L. 103–236,
§ 732(b)(2). See below.
Pub. L. 103–236, § 732(b)(2), inserted ‘‘and a description
from the person who has submitted the license applica-
§ 2776
tion of any offset agreement proposed to be entered
into in connection with such export (if known on the
date of transmittal of such statement)’’ after ‘‘Secretary of Defense’’.
Pub. L. 103–236, § 732(b)(1), inserted after first sentence
‘‘Each such numbered certification shall also contain
an item indicating whether any offset agreement is
proposed to be entered into in connection with such export (if known on the date of transmittal of such certification).’’
Subsec. (e). Pub. L. 103–236, § 732(c), added subsec. (e).
1989—Subsec. (a). Pub. L. 101–222, § 7(b), inserted
‘‘, and any information provided under paragraph (11)
of this subsection may also be provided in a classified
addendum’’ after ‘‘(b)(1) of this section’’ in introductory provisions.
Subsec. (a)(10), (11). Pub. L. 101–222, § 7(a), added pars.
(10) and (11).
Subsec. (b)(1)(D)(ii) to (v). Pub. L. 101–222, § 3(b), added
cl. (ii) and redesignated former cls. (ii) through (iv) as
(iii) through (v), respectively.
1986—Subsec. (b)(1). Pub. L. 99–247, § 1(b)(1), substituted ‘‘enacts a joint resolution prohibiting’’ for
‘‘adopts a concurrent resolution stating that it objects
to’’ in concluding provisions.
Subsec. (b)(2). Pub. L. 99–247, § 1(b)(2), inserted ‘‘joint’’
before ‘‘resolution’’ in four places.
Subsec. (b)(3). Pub. L. 99–247, § 1(b)(3), substituted
‘‘enactment of joint resolutions’’ for ‘‘adoption of concurrent resolutions’’ and ‘‘such joint resolution’’ for
‘‘such resolution’’.
Subsec. (c)(2)(B). Pub. L. 99–247, § 1(c)(1), substituted
‘‘enacts a joint resolution prohibiting’’ for ‘‘adopts a
concurrent resolution stating that it objects to’’.
Subsec. (c)(3)(A). Pub. L. 99–247, § 1(c)(2), inserted
‘‘joint’’ before ‘‘resolution’’.
Subsec. (c)(3)(B). Pub. L. 99–247, § 1(c)(3), substituted
‘‘enactment of joint resolutions’’ for ‘‘adoption of concurrent resolutions’’ and ‘‘such joint resolution’’ for
‘‘such resolution’’.
1985—Subsec. (a)(5). Pub. L. 99–83, § 1209(c)(1), substituted ‘‘sales’’ for ‘‘cash sales’’ and struck out provisions relating to credits under section 2763 of this title
and guaranty agreements under section 2764 of this
title.
Subsec. (a)(6). Pub. L. 99–83, § 1209(c)(2), substituted
‘‘sales expected to be made to’’ for ‘‘cash sales expected
to be made and credits expected to be extended to’’.
Subsec. (a)(7). Pub. L. 99–83, § 117, amended par. (7)
generally. Prior to amendment, par. (7) read as follows:
‘‘an estimate of the number of officers and employees
of the United States Government and of United States
civilian contract personnel present in each such country at the end of that quarter for assignments in implementation of sales and commercial exports under this
chapter;’’.
Subsec. (b)(1). Pub. L. 99–83, § 118(1), inserted requirement respecting detailed justification of reasons for
sale of sensitive articles or services.
Subsec. (b)(5). Pub. L. 99–83, § 118(2), added par. (5).
1981—Subsec. (a)(10). Pub. L. 97–113, § 109(d)(2), struck
out par. (10) which required that Presidential report to
Congress contain a listing (classified if necessary) of
property valued at $1,000,000 or more which was leased,
during the quarter for which a report was required, to
a foreign government for a period of more than six
months under section 2667 of title 10. See section 2796 et
seq. of this title.
Subsec. (b)(1). Pub. L. 97–113, §§ 101(c), 102(b)(1), increased the certification requirement limits to
$50,000,000 and $14,000,000 from $25,000,000 and $7,000,000
respecting offers to sell defense articles or services, and
major defense equipment; and prescribed a fifteen-calendar-day period after receiving a certification for a
concurrent resolution objecting to a proposed sale to
the North Atlantic Treaty Organization, any member
country of such Organization, Japan, Australia, or New
Zealand, and made the existing thirty-calendar-day period applicable only with respect to a proposed sale to
any other country or organization.
§ 2776
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
Subsec. (b)(2). Pub. L. 97–113, § 102(b)(2), authorized a
motion in the Senate for the discharge of the committee to which a resolution respecting the North Atlantic
Treaty Organization, any member country of such Organization, Japan, Australia, or New Zealand was referred for failure to report the resolution at end of five
calendar days after its introduction.
Subsec. (c)(1). Pub. L. 97–113, § 101(d), increased sales
contract limits to $14,000,000 and $50,000,000 from
$7,000,000 and $25,000,000 respecting sales of major defense equipment and defense articles or services.
Subsec. (d). Pub. L. 97–113, § 101(e), substituted reference to subsec. ‘‘(c)(1)’’ for ‘‘(c)’’ of this section.
1980—Subsec. (a)(9), (10). Pub. L. 96–533, §§ 105(c), 109(f),
added pars. (9) and (10).
Subsec. (b)(1). Pub. L. 96–533, § 105(d), required certification respecting offer to sell any design and construction services for $200,000,000 or more, required such certification to contain the information specified in subsec. (a)(9)(A)–(D) of this section, required such certification to contain an item identifying the sensitivity of
technology contained in the design and construction
services, and made subpar. (A), (C), (E), (I)–(N) provisions applicable to design and construction services.
Subsec. (c). Pub. L. 96–533, § 107(b), designated existing
provisions as par. (1), struck out ‘‘not less than 30
days’’ before ‘‘before issuing such license’’, redesignated as cls. (A) to (C) former pars. (1) to (3), and substituted ‘‘clause (B)’’ and ‘‘clause (C)’’ for ‘‘paragraph
(1)’’ and ‘‘paragraph (2)’’, respectively, and added pars.
(2) and (3).
1979—Subsec. (a). Pub. L. 96–92, § 19(a), increased to
sixty from thirty days the period for submission of the
President’s report at end of each quarter and struck
out par. (9) which required that the report contain an
analysis and description of the services of Federal personnel under provisions relating to sales from stock,
including numbers employed.
Subsec. (b)(1). Pub. L. 96–92, §§ 19(c), 20(b), required executive emergency justification statement and the
numbered certifications to contain an item, classified
if necessary, identifying the sensitivity of technology
contained in the defense articles or defense services
proposed to be sold.
Subsec. (b)(4). Pub. L. 96–92, § 16(b), added par. (4).
1978—Subsec. (b)(1)(D), (N) to (P). Pub. L. 95–384 in
subpar. (D) substituted provisions requiring an evaluation relating to the proposed sale to be prepared by the
Director of the Arms Control and Disarmament Agency
in consultation with the Secretary of State and the
Secretary of Defense for provisions requiring an analysis of the arms control impact pertinent to the offer to
sell prepared in consultation with the Secretary of Defense and added subpars. (N) to (P).
1976—Subsec. (a). Pub. L. 94–329, §§ 211(a), 604(a)(1), expanded existing provisions to provide for increased
comprehensiveness of the quarterly reports on sales of
defense articles or defense services, whether through
governmental channels or commercial channels.
Subsec. (b). Pub. L. 94–329, §§ 211(a), 604(a)(2), increased from 20 days to 30 days the period allowed Congress to reject a proposed offer to sell defense articles
or defense services and inserted provisions covering
any major defense equipment for $7,000,000 or more, requiring additional information with respect to any letter of offer to sell defense articles or defense services if
requested by Congress and requiring that a certification be transmitted pursuant to this subsection in
unclassified form unless public disclosure would be detrimental to the United States.
Subsec. (c). Pub. L. 94–329, § 211(a), substituted provisions relating to application by person for license for
export of any major defense equipment sold and contracted for $7,000,000 or more or defense articles or defense services for $25,000,000 or more, requiring the
President to transmit to Congress an unclassified numbered certification with respect to such application, for
provisions construing this section as not modifying in
any way section 1934 of this title.
Subsec. (d). Pub. L. 94–329, § 211(a), added subsec. (d).
Page 1020
1974—Subsecs. (a), (b). Pub. L. 93–559 added subsecs.
(a) and (b).
1973—Pub. L. 93–189 struck out subsec. (a) which required the Secretary of State to transmit to the Speaker of the House of Representatives and the Committee
on Foreign Relations of the Senate semiannual reports
of all exports of significant defense articles on the
United States munitions list to foreign governments,
etc., and subsec. (b) which provided for the inclusion in
the presentation material submitted to the Congress
during consideration of amendments to this chapter or
Acts appropriating funds under authority of this chapter annual tables showing the dollar value of cash and
credit foreign military sales orders, commitments to
order, etc.
CHANGE OF NAME
Reference to the Director of Central Intelligence or
the Director of the Central Intelligence Agency in the
Director’s capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of
the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108–458, set out as
a note under section 401 of Title 50, War and National
Defense.
EFFECTIVE DATE OF 1998 AMENDMENT
Amendment by Pub. L. 105–277 effective Apr. 1, 1999,
see section 1201 of Pub. L. 105–277, set out as an Effective Date note under section 6511 of this title.
EFFECTIVE DATE OF 1996 AMENDMENTS
Section 1045(b) of Pub. L. 104–201 provided that:
‘‘Paragraph (12) of section 36(a) of the Arms Export
Control Act [now 22 U.S.C. 2776(a)(11)], as added by subsection (a)(3), does not apply with respect to an agreement described in such paragraph entered into before
the date of the enactment of this Act [Sept. 23, 1996].’’
Amendment by section 141(c), (d) of Pub. L. 104–164
applicable with respect to certifications required to be
submitted on or after July 21, 1996, see section 141(f) of
Pub. L. 104–164, set out as a note under section 2753 of
this title.
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Section 211(b) of Pub. L. 94–329 provided that: ‘‘The
amendment made by subsection (a) of this section
[amending this section] shall apply with respect to letters of offer for which a certification is transmitted
pursuant to section 36(b) of the Arms Export Control
Act [subsec. (b) of this section] on or after the date of
enactment of this Act [June 30, 1976] and to export licenses for which an application is filed under section 38
of such Act [section 2778 of this title] on or after such
date.’’
Section 604(c) of Pub. L. 94–329 provided that: ‘‘The
amendments made by this section [amending this section and enacting section 2779 of this title] shall take
effect sixty days after the date of enactment of this Act
[June 30, 1976].’’
DELEGATION OF FUNCTIONS
Functions of President under subsecs. (a) and (b)(1) of
this section, except with respect to certification of an
emergency under subsec. (b)(1), delegated to Secretary
of Defense, with Secretary of Defense required to consult with other specific agencies in implementing certain delegated functions, by section 1(j) of Ex. Ord. No.
11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as
a note under section 2751 of this title.
Page 1021
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
Functions of President under subsecs. (c) and (d) of
this section delegated to Secretary of State, and functions of President under subsec. (e) of this section with
respect to transmittals pursuant to subsec. (b) of this
section delegated to Secretary of Defense and with respect to transmittals pursuant to subsec. (c) of this section delegated to Secretary of State, by section 1(k) of
Ex. Ord. No. 11958.
ASSESSMENT OF ISRAEL’S QUALITATIVE MILITARY EDGE
OVER MILITARY THREATS
Pub. L. 110–429, title II, § 201, Oct. 15, 2008, 122 Stat.
4843, provided that:
‘‘(a) ASSESSMENT REQUIRED.—The President shall
carry out an empirical and qualitative assessment on
an ongoing basis of the extent to which Israel possesses
a qualitative military edge over military threats to Israel. The assessment required under this subsection
shall be sufficiently robust so as to facilitate comparability of data over concurrent years.
‘‘(b) USE OF ASSESSMENT.—The President shall ensure
that the assessment required under subsection (a) is
used to inform the review by the United States of applications to sell defense articles and defense services
under the Arms Export Control Act (22 U.S.C. 2751 et
seq.) to countries in the Middle East.
‘‘(c) REPORTS.—
‘‘(1) INITIAL REPORT.—Not later than June 30, 2009,
the President shall transmit to the appropriate congressional committees a report on the initial assessment required under subsection (a).
‘‘(2) QUADRENNIAL REPORT.—Not later than four
years after the date on which the President transmits
the initial report under paragraph (1), and every four
years thereafter, the President shall transmit to the
appropriate congressional committees a report on the
most recent assessment required under subsection
(a).
‘‘(d) CERTIFICATION.—[Amended this section.]
‘‘(e) DEFINITIONS.—In this section:
‘‘(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The
term ‘appropriate congressional committees’ means
the Committee on Foreign Affairs of the House of
Representatives and the Committee on Foreign Relations of the Senate.
‘‘(2) QUALITATIVE MILITARY EDGE.—The term ‘qualitative military edge’ has the meaning given the term
in section 36(h) of the Arms Export Control Act, as
added by subsection (d) of this section [22 U.S.C.
2776(h)].’’
[Memorandum of President of the United States,
June 8, 2009, 74 F.R. 28863, provided that the functions
of the President in section 201(a) to (c) of Pub. L.
110–429, set out above, are delegated to the Secretary of
State, in coordination with the Secretary of Defense.]
NATIONAL DISCLOSURE POLICY FOR SENSITIVE WEAPONS
TECHNOLOGY; REPORT TO CONGRESS
Section 20(a) of Pub. L. 96–92 directed President to
undertake a thorough review of interagency procedures
and disclosure criteria used by United States in determining whether sensitive weapons technology will be
transferred to other countries, and not later than Feb.
15, 1980 to transmit a report to Congress setting forth
the results of such review, together with such recommendations as are necessary to improve the current
disclosure system, prior to repeal by Pub. L. 97–113,
title VII, § 734(a)(11), Dec. 29, 1981, 95 Stat. 1560.
§ 2776a. Repealed. Pub. L. 112–81, div. A, title X,
§ 1062(d)(4), Dec. 31, 2011, 125 Stat. 1585
Section, Pub. L. 109–364, div. A, title XII, § 1231, Oct.
17, 2006, 120 Stat. 2430; Pub. L. 110–181, div. A, title X,
§ 1063(c)(11), Jan. 28, 2008, 122 Stat. 323, required annual
report on foreign sales of significant military equipment manufactured in the United States.
§ 2778
§ 2777. Fiscal provisions relating to foreign military sales credits
(a) Permissible uses of cash payments under sections 2761, 2762, 2763, and 2769
Cash payments received under sections 2761,
2762, and 2769 of this title and advances received
under section 2763 of this title shall be available
solely for payments to suppliers (including the
military departments) and refunds to purchasers
and shall not be available for financing credits
and guaranties.
(b) Transfer of funds to miscellaneous receipts of
Treasury
Amounts received from foreign governments
and international organizations as repayments
for credits extended pursuant to section 2763 of
this title, amounts received from the disposition
of instruments evidencing indebtedness under
section 2764(b) of this title (excluding such portion of the sales proceeds as may be required at
the time of disposition to be obligated as a reserve for payment of claims under guaranties issued pursuant to section 2764(b) of this title,
which sums are made available for such obligations), and other collections (including fees and
interest) shall be transferred to the miscellaneous receipts of the Treasury.
(c) Credit of funds to reserve under section
2764(c)
Notwithstanding the provisions of subsection
(b) of this section, to the extent that any of the
funds constituting the reserve under section
2764(c) of this title are paid out for a claim arising out of a loan guaranteed under section 2764
of this title, amounts received from a foreign
government or international organization after
the date of such payment, with respect to such
claim, shall be credited to such reserve, shall be
merged with the funds in such reserve, and shall
be available for any purpose for which funds in
such reserve are available.
(Pub. L. 90–629, ch. 3, § 37, Oct. 22, 1968, 82 Stat.
1326; Pub. L. 93–189, § 25(11), Dec. 17, 1973, 87 Stat.
731; Pub. L. 96–533, title I, §§ 104(b), 105(e)(1), Dec.
16, 1980, 94 Stat. 3133, 3135.)
AMENDMENTS
1980—Subsec. (a). Pub. L. 96–533, § 105(e)(1), inserted
reference to section 2769 of this title.
Subsec. (c). Pub. L. 96–533, § 104(b), added subsec. (c).
1973—Subsec. (b). Pub. L. 93–189 inserted provisions
relating to indebtedness under section 2764(b) of this
title and exclusions of portions of the sales proceeds required at the time of disposition as a reserve for payment of claims under guaranties issued under section
2764(b) of this title.
§ 2778. Control of arms exports and imports
(a) Presidential control of exports and imports of
defense articles and services, guidance of
policy, etc.; designation of United States Munitions List; issuance of export licenses; negotiations information
(1) In furtherance of world peace and the security and foreign policy of the United States, the
President is authorized to control the import
and the export of defense articles and defense
services and to provide foreign policy guidance
to persons of the United States involved in the
§ 2778
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
export and import of such articles and services.
The President is authorized to designate those
items which shall be considered as defense articles and defense services for the purposes of this
section and to promulgate regulations for the
import and export of such articles and services.
The items so designated shall constitute the
United States Munitions List.
(2) Decisions on issuing export licenses under
this section shall take into account whether the
export of an article would contribute to an arms
race, aid in the development of weapons of mass
destruction, support international terrorism, increase the possibility of outbreak or escalation
of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements.
(3) In exercising the authorities conferred by
this section, the President may require that any
defense article or defense service be sold under
this chapter as a condition of its eligibility for
export, and may require that persons engaged in
the negotiation for the export of defense articles
and services keep the President fully and currently informed of the progress and future prospects of such negotiations.
(b) Registration and licensing requirements for
manufacturers, exporters, or importers of
designated defense articles and defense services
(1)(A)(i) As prescribed in regulations issued
under this section, every person (other than an
officer or employee of the United States Government acting in an official capacity) who engages
in the business of manufacturing, exporting, or
importing any defense articles or defense services designated by the President under subsection (a)(1) of this section shall register with
the United States Government agency charged
with the administration of this section, and
shall pay a registration fee which shall be prescribed by such regulations. Such regulations
shall prohibit the return to the United States
for sale in the United States (other than for the
Armed Forces of the United States and its allies
or for any State or local law enforcement agency) of any military firearms or ammunition of
United States manufacture furnished to foreign
governments by the United States under this
chapter or any other foreign assistance or sales
program of the United States, whether or not
enhanced in value or improved in condition in a
foreign country. This prohibition shall not extend to similar firearms that have been so substantially transformed as to become, in effect,
articles of foreign manufacture.
(ii)(I) As prescribed in regulations issued
under this section, every person (other than an
officer or employee of the United States Government acting in official capacity) who engages in
the business of brokering activities with respect
to the manufacture, export, import, or transfer
of any defense article or defense service designated by the President under subsection (a)(1)
of this section, or in the business of brokering
activities with respect to the manufacture, export, import, or transfer of any foreign defense
article or defense service (as defined in subclause (IV)), shall register with the United
States Government agency charged with the ad-
Page 1022
ministration of this section, and shall pay a registration fee which shall be prescribed by such
regulations.
(II) Such brokering activities shall include the
financing, transportation, freight forwarding, or
taking of any other action that facilitates the
manufacture, export, or import of a defense article or defense service.
(III) No person may engage in the business of
brokering activities described in subclause (I)
without a license, issued in accordance with this
chapter, except that no license shall be required
for such activities undertaken by or for an agency of the United States Government—
(aa) for use by an agency of the United
States Government; or
(bb) for carrying out any foreign assistance
or sales program authorized by law and subject to the control of the President by other
means.
(IV) For purposes of this clause, the term ‘‘foreign defense article or defense service’’ includes
any non-United States defense article or defense
service of a nature described on the United
States Munitions List regardless of whether
such article or service is of United States origin
or whether such article or service contains
United States origin components.
(B) 1 The prohibition under such regulations
required by the second sentence of subparagraph
(A) shall not extend to any military firearms (or
ammunition, components, parts, accessories,
and attachments for such firearms) of United
States manufacture furnished to any foreign
government by the United States under this
chapter or any other foreign assistance or sales
program of the United States if—
(i) such firearms are among those firearms
that the Secretary of the Treasury is, or was
at any time, required to authorize the importation of by reason of the provisions of section
925(e) of title 18 (including the requirement for
the listing of such firearms as curios or relics
under section 921(a)(13) of that title); and
(ii) such foreign government certifies to the
United States Government that such firearms
are owned by such foreign government.
(B) 1 A copy of each registration made under
this paragraph shall be transmitted to the Secretary of the Treasury for review regarding law
enforcement concerns. The Secretary shall report to the President regarding such concerns as
necessary.
(2) Except as otherwise specifically provided in
regulations issued under subsection (a)(1) of this
section, no defense articles or defense services
designated by the President under subsection
(a)(1) of this section may be exported or imported without a license for such export or import, issued in accordance with this chapter and
regulations issued under this chapter, except
that no license shall be required for exports or
imports made by or for an agency of the United
States Government (A) for official use by a department or agency of the United States Government, or (B) for carrying out any foreign assistance or sales program authorized by law and
subject to the control of the President by other
means.
1 So
in original. There are two subpars. designated ‘‘(B)’’.
Page 1023
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(3)(A) For each of the fiscal years 1988 and 1989,
$250,000 of registration fees collected pursuant to
paragraph (1) shall be credited to a Department
of State account, to be available without fiscal
year limitation. Fees credited to that account
shall be available only for the payment of expenses incurred for—
(i) contract personnel to assist in the evaluation of munitions control license applications, reduce processing time for license applications, and improve monitoring of compliance with the terms of licenses; and
(ii) the automation of munitions control
functions and the processing of munitions control license applications, including the development, procurement, and utilization of computer equipment and related software.
(B) The authority of this paragraph may be exercised only to such extent or in such amounts
as are provided in advance in appropriation
Acts.
(c) Criminal violations; punishment
Any person who willfully violates any provision of this section, section 2779 of this title, a
treaty referred to in subsection (j)(1)(C)(i), or
any rule or regulation issued under this section
or section 2779 of this title, including any rule or
regulation issued to implement or enforce a
treaty referred to in subsection (j)(1)(C)(i) or an
implementing arrangement pursuant to such
treaty, or who willfully, in a registration or license application or required report, makes any
untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the statements therein
not misleading, shall upon conviction be fined
for each violation not more than $1,000,000 or imprisoned not more than 20 years, or both.
(d) Repealed. Pub. L. 96–70, title III, § 3303(a)(4),
Sept. 27, 1979, 93 Stat. 499
(e) Enforcement powers of President
In carrying out functions under this section
with respect to the export of defense articles
and defense services, including defense articles
and defense services exported or imported pursuant to a treaty referred to in subsection
(j)(1)(C)(i), the President is authorized to exercise the same powers concerning violations and
enforcement which are conferred upon departments, agencies and officials by subsections (c),
(d), (e), and (g) of section 11 of the Export Administration Act of 1979 [50 U.S.C. App. 2410(c),
(d), (e), and (g)], and by subsections (a) and (c) of
section 12 of such Act [50 U.S.C. App. 2411(a) and
(c)], subject to the same terms and conditions as
are applicable to such powers under such Act [50
U.S.C. App. 2401 et seq.], except that section
11(c)(2)(B) of such Act shall not apply, and instead, as prescribed in regulations issued under
this section, the Secretary of State may assess
civil penalties for violations of this chapter and
regulations prescribed thereunder and further
may commence a civil action to recover such
civil penalties, and except further that the
names of the countries and the types and quantities of defense articles for which licenses are
issued under this section shall not be withheld
from public disclosure unless the President de-
§ 2778
termines that the release of such information
would be contrary to the national interest.
Nothing in this subsection shall be construed as
authorizing the withholding of information from
the Congress. Notwithstanding section 11(c) of
the Export Administration Act of 1979, the civil
penalty for each violation involving controls imposed on the export of defense articles and defense services under this section may not exceed
$500,000.
(f) Periodic review of items on Munitions List;
exemptions
(1) The President shall periodically review the
items on the United States Munitions List to determine what items, if any, no longer warrant
export controls under this section. The results
of such reviews shall be reported to the Speaker
of the House of Representatives and to the Committee on Foreign Relations and the Committee
on Banking, Housing, and Urban Affairs of the
Senate. The President may not remove any item
from the Munitions List until 30 days after the
date on which the President has provided notice
of the proposed removal to the Committee on
International Relations of the House of Representatives and to the Committee on Foreign
Relations of the Senate in accordance with the
procedures applicable to reprogramming notifications under section 2394–1(a) of this title. Such
notice shall describe the nature of any controls
to be imposed on that item under any other provision of law.
(2) The President may not authorize an exemption for a foreign country from the licensing requirements of this chapter for the export of defense items under subsection (j) of this section
or any other provision of this chapter until 30
days after the date on which the President has
transmitted to the Committee on International
Relations of the House of Representatives and
the Committee on Foreign Relations of the Senate a notification that includes—
(A) a description of the scope of the exemption, including a detailed summary of the defense articles, defense services, and related
technical data covered by the exemption; and
(B) a determination by the Attorney General
that the bilateral agreement concluded under
subsection (j) of this section requires the compilation and maintenance of sufficient documentation relating to the export of United
States defense articles, defense services, and
related technical data to facilitate law enforcement efforts to detect, prevent, and prosecute criminal violations of any provision of
this chapter, including the efforts on the part
of countries and factions engaged in international terrorism to illicitly acquire sophisticated United States defense items.
(3) Paragraph (2) shall not apply with respect
to an exemption for Canada from the licensing
requirements of this chapter for the export of
defense items.
(4) Paragraph (2) shall not apply with respect
to an exemption under subsection (j)(1) to give
effect to a treaty referred to in subsection
(j)(1)(C)(i) (and any implementing arrangements
to such treaty), provided that the President promulgates regulations to implement and enforce
such treaty under this section and section 2779
of this title.
§ 2778
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(g) Identification of persons convicted or subject
to indictment for violations of certain provisions
(1) The President shall develop appropriate
mechanisms to identify, in connection with the
export licensing process under this section—
(A) persons who are the subject of an indictment for, or have been convicted of, a violation under—
(i) this section,
(ii) section 11 of the Export Administration Act of 1979 (50 U.S.C. App. 2410),
(iii) section 793, 794, or 798 of title 18 (relating to espionage involving defense or classified information) or section 2339A of such
title (relating to providing material support
to terrorists),
(iv) section 16 of the Trading with the
Enemy Act (50 U.S.C. App. 16),
(v) section 206 of the International Emergency Economic Powers Act (relating to foreign assets controls; 50 U.S.C. App. 1705) [50
U.S.C. 1705],
(vi) section 30A of the Securities Exchange
Act of 1934 (15 U.S.C. 78dd–1) or section 104 of
the Foreign Corrupt Practices Act (15 U.S.C.
78dd–2),
(vii) chapter 105 of title 18 (relating to sabotage),
(viii) section 4(b) of the Internal Security
Act of 1950 (relating to communication of
classified information; 50 U.S.C. 783(b)),
(ix) section 57, 92, 101, 104, 222, 224, 225, or
226 of the Atomic Energy Act of 1954 (42
U.S.C. 2077, 2122, 2131, 2134, 2272, 2274, 2275,
and 2276),
(x) section 601 of the National Security Act
of 1947 (relating to intelligence identities
protection; 50 U.S.C. 421),
(xi) section 603(b) or (c) of the Comprehensive Anti-Apartheid Act of 1986 (22 U.S.C.
5113(b) and (c)); 2 or
(xii) section 3 3, 4, 5, and 6 of the Prevention of Terrorist Access to Destructive
Weapons Act of 2004, relating to missile systems designed to destroy aircraft (18 U.S.C.
2332g), prohibitions governing atomic weapons (42 U.S.C. 2122), radiological dispersal devices (18 U.S.C. 2332h), and variola virus (18
U.S.C. 175b 4);
(B) persons who are the subject of an indictment or have been convicted under section 371
of title 18 for conspiracy to violate any of the
statutes cited in subparagraph (A); and
(C) persons who are ineligible—
(i) to contract with,
(ii) to receive a license or other form of authorization to export from, or
(iii) to receive a license or other form of
authorization to import defense articles or
defense services from,
any agency of the United States Government.
(2) The President shall require that each applicant for a license to export an item on the
United States Munitions List identify in the ap2 So
in original. The semicolon probably should be a comma.
in original. Probably should be ‘‘sections’’.
4 So in original. Probably should be ‘‘175c’’.
3 So
Page 1024
plication all consignees and freight forwarders
involved in the proposed export.
(3) If the President determines—
(A) that an applicant for a license to export
under this section is the subject of an indictment for a violation of any of the statutes
cited in paragraph (1),
(B) that there is reasonable cause to believe
that an applicant for a license to export under
this section has violated any of the statutes
cited in paragraph (1), or
(C) that an applicant for a license to export
under this section is ineligible to contract
with, or to receive a license or other form of
authorization to import defense articles or defense services from, any agency of the United
States Government,
the President may disapprove the application.
The President shall consider requests by the
Secretary of the Treasury to disapprove any export license application based on these criteria.
(4) A license to export an item on the United
States Munitions List may not be issued to a
person—
(A) if that person, or any party to the export, has been convicted of violating a statute
cited in paragraph (1), or
(B) if that person, or any party to the export, is at the time of the license review ineligible to receive export licenses (or other forms
of authorization to export) from any agency of
the United States Government,
except as may be determined on a case-by-case
basis by the President, after consultation with
the Secretary of the Treasury, after a thorough
review of the circumstances surrounding the
conviction or ineligibility to export and a finding by the President that appropriate steps have
been taken to mitigate any law enforcement
concerns.
(5) A license to export an item on the United
States Munitions List may not be issued to a
foreign person (other than a foreign government).
(6) The President may require a license (or
other form of authorization) before any item on
the United States Munitions List is sold or
otherwise transferred to the control or possession of a foreign person or a person acting on behalf of a foreign person.
(7) The President shall, in coordination with
law enforcement and national security agencies,
develop standards for identifying high-risk exports for regular end-use verification. These
standards shall be published in the Federal Register and the initial standards shall be published
not later than October 1, 1988.
(8) Upon request of the Secretary of State, the
Secretary of Defense and the Secretary of the
Treasury shall detail to the office primarily responsible for export licensing functions under
this section, on a nonreimbursable basis, personnel with appropriate expertise to assist in the
initial screening of applications for export licenses under this section in order to determine
the need for further review of those applications
for foreign policy, national security, and law enforcement concerns.
(9) For purposes of this subsection—
(A) the term ‘‘foreign corporation’’ means a
corporation that is not incorporated in the
United States;
Page 1025
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(B) the term ‘‘foreign government’’ includes
any agency or subdivision of a foreign government, including an official mission of a foreign
government;
(C) the term ‘‘foreign person’’ means any
person who is not a citizen or national of the
United States or lawfully admitted to the
United States for permanent residence under
the Immigration and Nationality Act [8 U.S.C.
1101 et seq.], and includes foreign corporations,
international organizations, and foreign governments;
(D) the term ‘‘party to the export’’ means—
(i) the president, the chief executive officer, and other senior officers of the license
applicant;
(ii) the freight forwarders or designated
exporting agent of the license application;
and
(iii) any consignee or end user of any item
to be exported; and
(E) the term ‘‘person’’ means a natural person as well as a corporation, business association, partnership, society, trust, or any other
entity, organization, or group, including governmental entities.
(h) Judicial review of designation of items as defense articles or services
The designation by the President (or by an official to whom the President’s functions under
subsection (a) of this section have been duly delegated), in regulations issued under this section,
of items as defense articles or defense services
for purposes of this section shall not be subject
to judicial review.
(i) Report to Department of State
As prescribed in regulations issued under this
section, a United States person to whom a license has been granted to export an item on the
United States Munitions List shall, not later
than 15 days after the item is exported, submit
to the Department of State a report containing
all shipment information, including a description of the item and the quantity, value, port of
exit, and end-user and country of destination of
the item.
(j) Requirements relating to country exemptions
for licensing of defense items for export to
foreign countries
(1) Requirement for bilateral agreement
(A) In general
The President may utilize the regulatory
or other authority pursuant to this chapter
to exempt a foreign country from the licensing requirements of this chapter with respect to exports of defense items only if the
United States Government has concluded a
binding bilateral agreement with the foreign
country. Such agreement shall—
(i) meet the requirements set forth in
paragraph (2); and
(ii) be implemented by the United States
and the foreign country in a manner that
is legally-binding under their domestic
laws.
(B) Exception for Canada
The requirement to conclude a bilateral
agreement in accordance with subparagraph
§ 2778
(A) shall not apply with respect to an exemption for Canada from the licensing requirements of this chapter for the export of
defense items.
(C) Exception for defense trade cooperation
treaties
(i) In general
The requirement to conclude a bilateral
agreement in accordance with subparagraph (A) shall not apply with respect to
an exemption from the licensing requirements of this chapter for the export of defense items to give effect to any of the following defense trade cooperation treaties,
provided that the treaty has entered into
force pursuant to article II, section 2,
clause 2 of the Constitution of the United
States:
(I) The Treaty Between the Government of the United States of America
and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation, done at Washington and London on
June 21 and 26, 2007 (and any implementing arrangement thereto).
(II) The Treaty Between the Government of the United States of America
and the Government of Australia Concerning Defense Trade Cooperation, done
at Sydney September 5, 2007 (and any implementing arrangement thereto).
(ii) Limitation of scope
The United States shall exempt from the
scope of a treaty referred to in clause (i)—
(I) complete rocket systems (including
ballistic missile systems, space launch
vehicles, and sounding rockets) or complete unmanned aerial vehicle systems
(including cruise missile systems, target
drones, and reconnaissance drones) capable of delivering at least a 500 kilogram
payload to a range of 300 kilometers, and
associated production facilities, software, or technology for these systems, as
defined in the Missile Technology Control Regime Annex Category I, Item 1;
(II) individual rocket stages, re-entry
vehicles and equipment, solid or liquid
propellant motors or engines, guidance
sets, thrust vector control systems, and
associated production facilities, software, and technology, as defined in the
Missile Technology Control Regime
Annex Category I, Item 2;
(III) defense articles and defense services listed in the Missile Technology
Control Regime Annex Category II that
are for use in rocket systems, as that
term is used in such Annex, including associated production facilities, software,
or technology;
(IV) toxicological agents, biological
agents, and associated equipment, as
listed in the United States Munitions
List (part 121.1 of chapter I of title 22,
Code of Federal Regulations), Category
XIV, subcategories (a), (b), (f)(1), (i), (j)
as it pertains to (f)(1), (l) as it pertains to
§ 2778
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(f)(1), and (m) as it pertains to all of the
subcategories cited in this paragraph;
(V) defense articles and defense services specific to the design and testing of
nuclear weapons which are controlled
under United States Munitions List Category XVI(a) and (b), along with associated defense articles in Category XVI(d)
and technology in Category XVI(e);
(VI) with regard to the treaty cited in
clause (i)(I), defense articles and defense
services that the United States controls
under the United States Munitions List
that are not controlled by the United
Kingdom, as defined in the United Kingdom Military List or Annex 4 to the
United Kingdom Dual Use List, or any
successor lists thereto; and
(VII) with regard to the treaty cited in
clause (i)(II), defense articles for which
Australian laws, regulations, or other
commitments would prevent Australia
from enforcing the control measures
specified in such treaty.
(2) Requirements of bilateral agreement
A bilateral agreement referred to 5 paragraph (1)—
(A) shall, at a minimum, require the foreign country, as necessary, to revise its policies and practices, and promulgate or enact
necessary modifications to its laws and regulations to establish an export control regime that is at least comparable to United
States law, regulation, and policy requiring—
(i) conditions on the handling of all
United States-origin defense items exported to the foreign country, including
prior written United States Government
approval for any reexports to third countries;
(ii) end-use and retransfer control commitments, including securing binding enduse and retransfer control commitments
from all end-users, including such documentation as is needed in order to ensure
compliance and enforcement, with respect
to such United States-origin defense
items;
(iii) establishment of a procedure comparable to a ‘‘watchlist’’ (if such a watchlist does not exist) and full cooperation
with United States Government law enforcement agencies to allow for sharing of
export and import documentation and
background information on foreign businesses and individuals employed by or
otherwise connected to those businesses;
and
(iv) establishment of a list of controlled
defense items to ensure coverage of those
items to be exported under the exemption;
and
(B) should, at a minimum, require the foreign country, as necessary, to revise its policies and practices, and promulgate or enact
necessary modifications to its laws and regulations to establish an export control re5 So
in original. Probably should be followed by ‘‘in’’.
Page 1026
gime that is at least comparable to United
States law, regulation, and policy regarding—
(i) controls on the export of tangible or
intangible technology, including via fax,
phone, and electronic media;
(ii) appropriate controls on unclassified
information relating to defense items exported to foreign nationals;
(iii) controls on international arms trafficking and brokering;
(iv) cooperation with United States Government agencies, including intelligence
agencies, to combat efforts by third countries to acquire defense items, the export
of which to such countries would not be
authorized pursuant to the export control
regimes of the foreign country and the
United States; and
(v) violations of export control laws, and
penalties for such violations.
(3) Advance certification
Not less than 30 days before authorizing an
exemption for a foreign country from the licensing requirements of this chapter for the
export of defense items, the President shall
transmit to the Committee on International
Relations of the House of Representatives and
the Committee on Foreign Relations of the
Senate a certification that—
(A) the United States has entered into a
bilateral agreement with that foreign country satisfying all requirements set forth in
paragraph (2);
(B) the foreign country has promulgated or
enacted all necessary modifications to its
laws and regulations to comply with its obligations under the bilateral agreement with
the United States; and
(C) the appropriate congressional committees will continue to receive notifications
pursuant to the authorities, procedures, and
practices of section 2776 of this title for defense exports to a foreign country to which
that section would apply and without regard
to any form of defense export licensing exemption otherwise available for that country.
(4) Definitions
In this section:
(A) Defense items
The term ‘‘defense items’’ means defense
articles, defense services, and related technical data.
(B) Appropriate congressional committees
The term ‘‘appropriate congressional committees’’ means—
(i) the Committee on International Relations and the Committee on Appropriations of the House of Representatives; and
(ii) the Committee on Foreign Relations
and the Committee on Appropriations of
the Senate.
(Pub. L. 90–629, ch. 3, § 38, as added Pub. L. 94–329,
title II, § 212(a)(1), June 30, 1976, 90 Stat. 744;
amended Pub. L. 95–92, § 20, Aug. 4, 1977, 91 Stat.
623; Pub. L. 96–70, title III, § 3303(a)(4), Sept. 27,
1979, 93 Stat. 499; Pub. L. 96–72, § 22(a), Sept. 29,
Page 1027
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
1979, 93 Stat. 535; Pub. L. 96–92, § 21, Oct. 29, 1979,
93 Stat. 710; Pub. L. 96–533, title I, § 107(a), (c),
Dec. 16, 1980, 94 Stat. 3136; Pub. L. 97–113, title I,
§§ 106, 107, Dec. 29, 1981, 95 Stat. 1522; Pub. L.
99–64, title I, § 123(a), July 12, 1985, 99 Stat. 156;
Pub. L. 99–83, title I, § 119(a), (b), Aug. 8, 1985, 99
Stat. 203, 204; Pub. L. 100–202, § 101(b) [title VIII,
§ 8142(a)], Dec. 22, 1987, 101 Stat. 1329–43, 1329–88;
Pub. L. 100–204, title XII, § 1255, Dec. 22, 1987, 101
Stat. 1429; Pub. L. 101–222, §§ 3(a), 6, Dec. 12, 1989,
103 Stat. 1896, 1899; Pub. L. 103–236, title VII,
§ 714(a)(1), Apr. 30, 1994, 108 Stat. 497; Pub. L.
104–164, title I, §§ 151(a), 156, July 21, 1996, 110
Stat. 1437, 1440; Pub. L. 105–277, div. G, subdiv. A,
title XII, § 1225(a)(2), Oct. 21, 1998, 112 Stat.
2681–773; Pub. L. 106–113, div. B, § 1000(a)(7) [div.
B, title XIII, §§ 1302(a), 1303, 1304], Nov. 29, 1999,
113 Stat. 1536, 1501A–510, 1501A–511; Pub. L.
106–280, title I, § 102(a), (b), Oct. 6, 2000, 114 Stat.
846, 848; Pub. L. 107–228, div. B, title XIV, § 1406,
Sept. 30, 2002, 116 Stat. 1458; Pub. L. 108–458, title
VI, § 6910, Dec. 17, 2004, 118 Stat. 3774; Pub. L.
111–195, title I, § 107(a)(2), July 1, 2010, 124 Stat.
1337; Pub. L. 111–266, title I, §§ 102(b)–103(c), Oct.
8, 2010, 124 Stat. 2797, 2799.)
REFERENCES IN TEXT
This chapter, referred to in text, 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.
The Export Administration Act of 1979, referred to in
subsec. (e), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503,
as amended, which is classified principally to section
2401 et seq. of Title 50, Appendix, War and National Defense. For complete classification of this Act to the
Code, see Short Title note set out under section 2401 of
Title 50, Appendix, and Tables.
Section 104 of the Foreign Corrupt Practices Act (15
U.S.C. 78dd–2), referred to in subsec. (g)(1)(A)(vi), probably means section 104 of the Foreign Corrupt Practices
Act of 1977, which is classified to section 78dd–2 of Title
15, Commerce and Trade.
Sections 3, 4, 5, and 6 of the Prevention of Terrorist
Access to Destructive Weapons Act of 2004, referred to
in subsec. (g)(1)(A)(xii), probably means sections 6903,
6904, 6905, and 6906, respectively, of Pub. L. 108–458,
which enacted section 2332g of Title 18, Crimes and
Criminal Procedure, amended sections 2122 and 2272 of
Title 42, The Public Health and Welfare, and enacted
sections 2332h and 175c of Title 18.
The Immigration and Nationality Act, referred to in
subsec. (g)(9)(C), is act June 27, 1952, ch. 477, 66 Stat.
163, as amended, which is classified principally to chapter 12 (§ 1101 et seq.) of Title 8, Aliens and Nationality.
For complete classification of this Act to the Code, see
Short Title note set out under section 1101 of Title 8
and Tables.
REFERENCE TO SECTION 1934 OF THIS TITLE DEEMED
REFERENCE TO THIS SECTION
Section 212(b)(1) of Pub. L. 94–329 provided in part
that: ‘‘Any reference to such section [section 1934 of
this title] shall be deemed to be a reference to section
38 of the Arms Export Control Act [this section] and
any reference to licenses issued under section 38 of the
Arms Export Control Act [this section] shall be deemed
to include a reference to licenses issued under section
414 of the Mutual Security Act of 1954.’’
AMENDMENTS
2010—Subsec. (c). Pub. L. 111–266, § 103(a), substituted
‘‘this section, section 2779 of this title, a treaty referred
to in subsection (j)(1)(C)(i), or any rule or regulation is-
§ 2778
sued under this section or section 2779 of this title, including any rule or regulation issued to implement or
enforce a treaty referred to in subsection (j)(1)(C)(i) or
an implementing arrangement pursuant to such treaty’’ for ‘‘this section or section 2779 of this title, or any
rule or regulation issued under either section’’.
Pub. L. 111–195 substituted ‘‘20 years’’ for ‘‘ten
years’’.
Subsec. (e). Pub. L. 111–266, § 103(b), substituted ‘‘defense services, including defense articles and defense
services exported or imported pursuant to a treaty referred to in subsection (j)(1)(C)(i),’’ for ‘‘defense services,’’.
Subsec. (f)(4). Pub. L. 111–266, § 103(c), added par. (4).
Subsec. (j)(1)(B). Pub. L. 111–266, § 102(b)(1), inserted
‘‘for Canada’’ after ‘‘Exception’’ in heading.
Subsec. (j)(1)(C). Pub. L. 111–266, § 102(b)(2), added subpar. (C).
2004—Subsec. (g)(1)(A)(xii). Pub. L. 108–458 added cl.
(xii).
2002—Subsec. (f)(1). Pub. L. 107–228 substituted ‘‘The
President may not remove any item from the Munitions List until 30 days after the date on which the
President has provided notice of the proposed removal
to the Committee on International Relations of the
House of Representatives and to the Committee on Foreign Relations of the Senate in accordance with the
procedures applicable to reprogramming notifications
under section 2394–1(a) of this title. Such notice shall
describe the nature of any controls to be imposed on
that item under any other provision of law.’’ for ‘‘Such
a report shall be submitted at least 30 days before any
item is removed from the Munitions List and shall describe the nature of any controls to be imposed on that
item under the Export Administration Act of 1979.’’
2000—Subsec. (f). Pub. L. 106–280, § 102(b), designated
existing provisions as par. (1) and added pars. (2) and
(3).
Subsec. (j). Pub. L. 106–280, § 102(a), added subsec. (j).
1999—Subsec. (e). Pub. L. 106–113, § 1000(a)(7) [title
XIII, § 1303], in first sentence, inserted ‘‘section
11(c)(2)(B) of such Act shall not apply, and instead, as
prescribed in regulations issued under this section, the
Secretary of State may assess civil penalties for violations of this chapter and regulations prescribed thereunder and further may commence a civil action to recover such civil penalties, and except further that’’
after ‘‘except that’’.
Subsec. (g)(1)(A)(iii). Pub. L. 106–113, § 1000(a)(7) [title
XIII, § 1304], inserted ‘‘or section 2339A of such title (relating to providing material support to terrorists)’’ before comma at end.
Subsec. (i). Pub. L. 106–113, § 1000(a)(7) [title XIII,
§ 1302(a)], added subsec. (i).
1998—Subsec. (a)(2). Pub. L. 105–277 substituted ‘‘take
into account’’ for ‘‘be made in coordination with the
Director of the United States Arms Control and Disarmament Agency, taking into account the Director’s
assessment as to’’ and struck out at end ‘‘The Director
of the Arms Control and Disarmament Agency is authorized, whenever the Director determines that the issuance of an export license under this section would be
detrimental to the national security of the United
States, to recommend to the President that such export license be disapproved.’’
1996—Subsec. (b)(1)(A). Pub. L. 104–164, § 151(a), designated existing provisions of subpar. (A) as cl. (i) and
added cl. (ii).
Subsec. (e). Pub. L. 104–164, § 156, inserted before period at end of first sentence ‘‘, except that the names
of the countries and the types and quantities of defense
articles for which licenses are issued under this section
shall not be withheld from public disclosure unless the
President determines that the release of such information would be contrary to the national interest’’.
1994—Subsec. (a)(2). Pub. L. 103–236 amended par. (2)
generally. Prior to amendment, par. (2) read as follows:
‘‘Decisions on issuing export licenses under this section
shall be made in coordination with the Director of the
United States Arms Control and Disarmament Agency
§ 2778
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
and shall take into account the Director’s opinion as to
whether the export of an article will contribute to an
arms race, support international terrorism, increase
the possibility of outbreak or escalation of conflict, or
prejudice the development of bilateral or multilateral
arms control arrangements.’’
1989—Subsec. (a)(2). Pub. L. 101–222, § 3(a), inserted
‘‘support international terrorism,’’ after ‘‘arms race,’’.
Subsec. (h). Pub. L. 101–222, § 6, added subsec. (h).
1987—Subsec. (b)(1). Pub. L. 100–204, § 1255(b), designated existing provisions as subpar. (A) and added
subpar. (B) relating to review by Secretary of the
Treasury of munitions control registrations.
Pub. L. 100–202 designated existing provisions as subpar. (A) and added subpar. (B) relating to allowance of
return to United States of certain military firearms,
etc., under certain circumstances.
Subsec. (b)(3). Pub. L. 100–204, § 1255(c), added par. (3).
Subsec. (g). Pub. L. 100–204, § 1255(a), added subsec. (g).
1985—Subsec. (c). Pub. L. 99–83, § 119(a), inserted ‘‘for
each violation’’ before ‘‘not more’’ and substituted
‘‘$1,000,000’’ for ‘‘$100,000’’ and ‘‘ten’’ for ‘‘two’’.
Subsec. (e). Pub. L. 99–83, § 119(b), inserted provisions
relating to civil penalty for each violation.
Pub. L. 99–64 substituted ‘‘(g)’’ for ‘‘(f)’’.
1981—Subsec. (b)(3). Pub. L. 97–113, § 106, struck out
par. (3) which placed a $100,000,000 ceiling on commercial arms exports of major defense equipment to all
countries other than NATO countries, Japan, Australia, and New Zealand.
Subsec. (f). Pub. L. 97–113, § 107, added subsec. (f).
1980—Subsec. (a)(3). Pub. L. 96–533, § 107(c), added par.
(3).
Subsec. (b)(3). Pub. L. 96–533, § 107(a), increased the
limitation in the sale of major defense equipment exports to $100,000,000 from $35,000,000.
1979—Subsec. (b)(3). Pub. L. 96–92 increased the limitation in the sale of major defense equipment exports
to $35,000,000 from $25,000,000.
Subsec. (d). Pub. L. 96–70 struck out subsec. (d) which
provided that this section applies to and within the
Canal Zone.
Subsec. (e). Pub. L. 96–72 substituted ‘‘subsections (c),
(d), (e), and (f) of section 11 of the Export Administration Act of 1979, and by subsections (a) and (c) of section 12 of such Act’’ for ‘‘sections 6(c), (d), (e), and (f)
and 7(a) and (c) of the Export Administration Act of
1969’’.
1977—Subsec. (b)(3). Pub. L. 95–92 inserted provisions
relating to exceptions to prohibitions against issuance
of licenses under this section and procedures applicable
for implementation of such exceptions.
CHANGE OF NAME
Committee on International Relations of House of
Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution
No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
EFFECTIVE DATE OF 1998 AMENDMENT
Amendment by Pub. L. 105–277 effective Apr. 1, 1999,
see section 1201 of Pub. L. 105–277, set out as an Effective Date note under section 6511 of this title.
EFFECTIVE DATE OF 1996 AMENDMENT
Section 151(b) of Pub. L. 104–164 provided that: ‘‘Section 38(b)(1)(A)(ii) of the Arms Export Control Act, as
added by subsection (a) [22 U.S.C. 2778(b)(1)(A)(ii)], shall
apply with respect to brokering activities engaged in
beginning on or after 120 days after the enactment of
this Act [July 21, 1996].’’
EFFECTIVE DATE OF 1987 AMENDMENT
Section 101(b) [title VIII, § 8142(b)] of Pub. L. 100–202
provided that:
‘‘(1) Except as provided in paragraphs (2) and (3), subparagraph (B) of section 38(b)(1) of the Arms Export
Control Act [subsec. (b)(1)(B) of this section], as added
by subsection (a), shall take effect at the end of the
Page 1028
ninety-day period beginning on the date of the enactment of this Act [Dec. 22, 1987].
‘‘(2)(A) Such subparagraph shall take effect on the
date of the enactment of this Act [Dec. 22, 1987] with respect to any military firearms or ammunition (or components, parts, accessories and attachments for such
firearms) with respect to which an import permit was
issued by the Secretary of the Treasury on or after
July 1, 1986, irrespective of whether such import permit
was subsequently suspended, revoked, or withdrawn by
the Secretary of the Treasury based on the application
of section 38(b)(1) of the Arms Export Control Act [subsec. (b)(1) of this section] as in effect on the day before
the date of the enactment of this Act.
‘‘(B) In the case of an import permit described in subparagraph (A) which was suspended, revoked, or withdrawn by the Secretary of the Treasury during the period beginning on July 1, 1986, and ending on the date
of the enactment of this Act [Dec. 22, 1987] under the
conditions described in such subparagraph, such import
permit shall be reinstated and reissued immediately
upon the enactment of this Act, and in any event not
later than ten days after the date of the enactment of
this Act.
‘‘(3) During the period preceding the revision of regulations issued under section 38(b)(1) of the Arms Export
Control Act [subsec. (b)(1) of this section] to reflect the
provisions of subparagraph (B) of such section, as added
by subsection (a), such regulations may not be applied
with respect to matters covered by paragraph (2) of this
subsection so as to prohibit or otherwise restrict the
importation of firearms described in that paragraph or
in any other manner inconsistent with that paragraph,
notwithstanding that such regulations have not yet
been so revised: Provided, That this section shall not
take effect if during the twenty day period beginning
on the date of enactment of this section [Dec. 22, 1987]
the Secretary of State, the Secretary of Defense, or the
Secretary of the Treasury notifies Congress that he has
an objection to the intent of this section: Provided further, That the Attorney General shall, within the period of time stated in the first proviso, submit a certification to Congress indicating whether the enactment of
this section will interfere with any ongoing criminal
investigation with respect to this section. If a certification of criminal investigative interference or an objection to the intent of this section is made, as herein
provided, no permit shall be issued to anyone.’’
EFFECTIVE DATE OF 1985 AMENDMENT
Section 119(c) of Pub. L. 99–83 provided that: ‘‘This
section [amending this section] shall take effect upon
the date of enactment of this Act [Aug. 8, 1985] or October 1, 1985, whichever is later. The amendments made
by this section apply with respect to violations occurring after the effective date of this section.’’
EFFECTIVE DATE OF 1979 AMENDMENTS
Amendment by Pub. L. 96–72 effective upon the expiration of the Export Administration Act of 1969, which
terminated on Sept. 30, 1979, or upon any prior date
which the Congress by concurrent resolution or the
President by proclamation designated, see section 2418
and Prior Provisions note set out under section 2413 of
Title 50, Appendix, War and National Defense.
Amendment by Pub. L. 96–70 effective Oct. 1, 1979, see
section 3304 of Pub. L. 96–70, set out as an Effective
Date note under section 3601 of this title.
REGULATIONS
Pub. L. 111–266, title I, § 106, Oct. 8, 2010, 124 Stat. 2802,
provided that: ‘‘The President is authorized to issue
regulations pursuant to the Arms Export Control Act
(22 U.S.C. 2751 et seq.) to implement and enforce the
Treaty Between the Government of the United States
of America and the Government of the United Kingdom
of Great Britain and Northern Ireland Concerning Defense Trade Cooperation, done at Washington and London on June 21 and 26, 2007 (and any implementing ar-
Page 1029
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
rangement thereto) and the Treaty Between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation, done at Sydney, September 5, 2007 (and any
implementing arrangement thereto), consistent with
other applicable provisions of the Arms Export Control
Act, as amended by this Act [see Short Title of 2010
Amendment notes set out under section 2751 of this
title], and with the terms of any resolution of advice
and consent adopted by the Senate with respect to either treaty.’’
RULE OF CONSTRUCTION
Pub. L. 111–266, title I, § 107, Oct. 8, 2010, 124 Stat. 2802,
provided that: ‘‘Nothing in this title [see section 101 of
Pub. L. 111–266, set out as a Short Title of 2010 Amendment note under section 2751 of this title], the Treaty
Between the Government of the United States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland Concerning Defense
Trade Cooperation, done at Washington and London on
June 21 and 26, 2007 (and any implementing arrangement thereto), the Treaty Between the Government of
the United States of America and the Government of
Australia Concerning Defense Trade Cooperation, done
at Sydney, September 5, 2007 (and any implementing
arrangement thereto), or in any regulation issued to
implement either treaty, shall be construed to modify
or supersede any provision of law or regulation other
than the Arms Export Control Act (22 U.S.C. 2751 et
seq.), as amended by this Act [see Short Title of 2010
Amendment notes set out under section 2751 of this
title], and the International Traffic in Arms Regulations (subchapter M of chapter I of title 22, Code of Federal Regulations).’’
DELEGATION OF FUNCTIONS
Functions of President under this section, with certain exceptions, delegated to Secretary of State, with
concurrence of Secretary of Defense required for designations of items or categories of items which are considered as defense articles or services subject to export
control under this section, by section 1(l)(1) of Ex. Ord.
No. 11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out
as a note under section 2751 of this title.
Functions of President under this section relating to
the control of import of defense articles and services
transferred to Attorney General, with certain requirements for considering the views of Secretary of State
and for receiving concurrence of Secretary of State and
Secretary of Defense for designations of items or categories of items which are considered as defense articles and services subject to import control under this
section, by section 1(l)(2) of Ex. Ord. No. 11958.
Functions of President which involve subsec. (e) of
this section and are agreed to by Secretary of State
and Secretary of Commerce delegated to Secretary of
Commerce to be carried out on behalf of Secretary of
State by section 1(l)(3) of Ex. Ord. No. 11958.
LIMITATION ON IMPLEMENTING ARRANGEMENTS
Pub. L. 111–266, title I, § 105, Oct. 8, 2010, 124 Stat. 2800,
provided that:
‘‘(a) IN GENERAL.—No amendment to an implementing arrangement concluded pursuant to a treaty referred to in section 38(j)(1)(C)(i) of the Arms Export
Control Act, as added by this Act [22 U.S.C.
2778(j)(1)(C)(i)], shall enter into effect for the United
States unless the Congress adopts, and there is enacted,
legislation approving the entry into effect of that
amendment for the United States.
‘‘(b) COVERED AMENDMENTS.—
‘‘(1) IN GENERAL.—The requirements specified in
subsection (a) shall apply to any amendment other
than an amendment that addresses an administrative
or technical matter. The requirements in subsection
(a) shall not apply to any amendment that solely addresses an administrative or technical matter.
‘‘(2) U.S.-UK IMPLEMENTING ARRANGEMENT.—In the
case of the Implementing Arrangement Pursuant to
§ 2778
the Treaty Between the Government of the United
States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation, signed at Washington February 14, 2008, amendments to which the
requirements specified in subsection (a) apply shall
include—
‘‘(A) any amendment to section 2, paragraphs (1),
(2), or (3) that modifies the criteria governing operations, programs, and projects to which the treaty
applies;
‘‘(B) any amendment to section 3, paragraphs (1)
or (2) that modifies the criteria governing end-use
requirements and the requirements for approved
community members responding to United States
Government solicitations;
‘‘(C) any amendment to section 4, paragraph (4)
that modifies the criteria for including items on
the list of defense articles exempt from the treaty;
‘‘(D) any amendment to section 4, paragraph (7)
that modifies licensing and other applicable requirements relating to items added to the list of defense articles exempt from the scope of the treaty;
‘‘(E) any amendment to section 7, paragraph (4)
that modifies the criteria for eligibility in the approved community under the treaty for nongovernmental United Kingdom entities and facilities;
‘‘(F) any amendment to section 7, paragraph (9)
that modifies the conditions for suspending or removing a United Kingdom entity from the approved
community under the treaty;
‘‘(G) any amendment to section 7, paragraphs (11)
or (12) that modifies the conditions under which individuals may be granted access to defense articles
exported under the treaty;
‘‘(H) any amendment to section 9, paragraphs (1),
(3), (7), (8), (9), (12), or (13) that modifies the circumstances under which United States Government approval is required for the re-transfer or re-export of
a defense article, or to exceptions to such requirement; and
‘‘(I) any amendment to section 11, paragraph
(4)(b) that modifies conditions of entry to the
United Kingdom community under the treaty.
‘‘(3) U.S.-AUSTRALIA IMPLEMENTING ARRANGEMENT.—
In the case of the Implementing Arrangement Pursuant to the Treaty Between the Government of the
United States of America and the Government of the
[sic] Australia Concerning Defense Trade Cooperation, signed at Washington March 14, 2008, amendments to which the requirements specified in subsection (a) apply shall include—
‘‘(A) any amendment to section 2, paragraphs (1),
(2), or (3) that modifies the criteria governing operations, programs, and projects to which the treaty
applies;
‘‘(B) any amendment to section 3, paragraphs (1)
or (2) that modifies the criteria governing end-use
requirements and the requirements for approved
community members responding to United States
Government solicitations;
‘‘(C) any amendment to section 4, paragraph (4)
that modifies criteria for including items on the
list of defense articles exempt from the scope of the
treaty;
‘‘(D) any amendment to section 4, paragraph (7)
that modifies licensing and other applicable requirements relating to items added to the list of defense articles exempt from the scope of the treaty;
‘‘(E) any amendment to section 6, paragraph (4)
that modifies the criteria for eligibility in the approved community under the treaty for nongovernmental Australian entities and facilities;
‘‘(F) any amendment to section 6, paragraph (9)
that modifies the conditions for suspending or removing an Australian entity from the Australia
community under the treaty;
‘‘(G) any amendment to section 6, paragraphs (11),
(12), (13), or (14) that modifies the conditions under
which individuals may be granted access to defense
articles exported under the treaty;
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
‘‘(H) any amendment to section 9, paragraphs (1),
(2), (4), (7), or (8) that modifies the circumstances
under which United States Government approval is
required for the re-transfer or re-export of a defense
article, or to exceptions to such requirement; and
‘‘(I) any amendment to section 11, paragraph (6)
that modifies conditions of entry to the Australian
community under the treaty.
‘‘(c) CONGRESSIONAL NOTIFICATION FOR OTHER AMENDMENTS TO IMPLEMENTING ARRANGEMENTS.—Not later
than 15 days before any amendment to an implementing arrangement to which subsection (a) does not apply
shall take effect, the President shall provide to the
Committee on Foreign Relations of the Senate and the
Committee on Foreign Affairs of the House of Representatives a report containing—
‘‘(1) the text of the amendment; and
‘‘(2) an analysis of the amendment’s effect, including an analysis regarding why subsection (a) does not
apply.’’
INFORMATION MANAGEMENT PRIORITIES
Pub. L. 107–228, div. B, title XIV, § 1403, Sept. 30, 2002,
116 Stat. 1453, provided that:
‘‘(a) OBJECTIVE.—The Secretary shall establish a secure, Internet-based system for the filing and review of
applications for export of Munitions List items.
‘‘(b) ESTABLISHMENT OF AN ELECTRONIC SYSTEM.—Of
the amount made available pursuant to section 1402 of
this Act [116 Stat. 1453], $3,000,000 is authorized to be
available to fully automate the Defense Trade Application System, and to ensure that the system—
‘‘(1) is a secure, electronic system for the filing and
review of Munitions List license applications;
‘‘(2) is accessible by United States companies
through the Internet for the purpose of filing and
tracking their Munitions List license applications;
and
‘‘(3) is capable of exchanging data with—
‘‘(A) the Export Control Automated Support System of the Department of Commerce;
‘‘(B) the Foreign Disclosure and Technology Information System and the USXPORTS systems of
the Department of Defense;
‘‘(C) the Export Control System of the Central Intelligence Agency; and
‘‘(D) the Proliferation Information Network System of the Department of Energy.
‘‘(c) MUNITIONS LIST DEFINED.—In this section, the
term ‘Munitions List’ means the United States Munitions List of defense articles and defense services controlled under section 38 of the Arms Export Control Act
(22 U.S.C. 2778).’’
[For definition of ‘‘Secretary’’ as used in section 1403
of Pub. L. 107–228, set out above, see section 3 of Pub.
L. 107–228, set out as a note under section 2651 of this
title.]
EFFECTIVE REGULATION OF SATELLITE EXPORT
ACTIVITIES
Pub. L. 106–113, div. B, § 1000(a)(7) [div. B, title XIII,
§ 1309], Nov. 29, 1999, 113 Stat. 1536, 1501A–513, provided
that:
‘‘(a) LICENSING REGIME.—
‘‘(1) ESTABLISHMENT.—The Secretary of State shall
establish a regulatory regime for the licensing for export of commercial satellites, satellite technologies,
their components, and systems which shall include
expedited approval, as appropriate, of the licensing
for export by United States companies of commercial
satellites, satellite technologies, their components,
and systems, to NATO allies and major non-NATO allies (as used within the meaning of section 644(q) of
the Foreign Assistance Act of 1961 [22 U.S.C. 2403(q)]).
‘‘(2) REQUIREMENTS.—For proposed exports to those
nations which meet the requirements of paragraph
(1), the regime should include expedited processing of
requests for export authorizations that—
‘‘(A) are time-critical, including a transfer or exchange of information relating to a satellite failure
or anomaly in-flight or on-orbit;
Page 1030
‘‘(B) are required to submit bids to procurements
offered by foreign persons;
‘‘(C) relate to the re-export of unimproved materials, products, or data; or
‘‘(D) are required to obtain launch and on-orbit
insurance.
‘‘(3) ADDITIONAL REQUIREMENTS.—In establishing the
regulatory regime under paragraph (1), the Secretary
of State shall ensure that—
‘‘(A) United States national security considerations and United States obligations under the Missile Technology Control Regime are given priority
in the evaluation of any license; and
‘‘(B) such time is afforded as is necessary for the
Department of Defense, the Department of State,
and the United States intelligence community to
conduct a review of any license.
‘‘(b) FINANCIAL AND PERSONNEL RESOURCES.—Of the
funds authorized to be appropriated in section 101(1)(A)
[113 Stat. 1501A–410], $9,000,000 is authorized to be appropriated for the Office of Defense Trade Controls of
the Department of State for each of the fiscal years
2000 and 2001, to enable that office to carry out its responsibilities.
‘‘(c) IMPROVEMENT AND ASSESSMENT.—The Secretary
of State should, not later than 6 months after the date
of the enactment of this Act [Nov. 29, 1999], submit to
the Congress a plan for—
‘‘(1) continuously gathering industry and public
suggestions for potential improvements in the Department of State’s export control regime for commercial satellites; and
‘‘(2) arranging for the conduct and submission to
Congress, not later than 15 months after the date of
the enactment of this Act, of an independent review
of the export control regime for commercial satellites as to its effectiveness at promoting national
security and economic competitiveness.’’
PROLIFERATION AND EXPORT CONTROLS
Pub. L. 106–65, div. A, title XIV, §§ 1402–1405, 1408–1412,
Oct. 5, 1999, 113 Stat. 798–804, as amended by Pub. L.
106–398, § 1 [[div. A], title XII, § 1204], Oct. 30, 2000, 114
Stat. 1654, 1654A–325; Pub. L. 107–107, div. A, title X,
§ 1048(g)(8), Dec. 28, 2001, 115 Stat. 1228, provided that:
‘‘SEC. 1402. ANNUAL REPORT ON TRANSFERS OF
MILITARILY SENSITIVE TECHNOLOGY TO
COUNTRIES AND ENTITIES OF CONCERN
‘‘(a) ANNUAL REPORT.—Not later than March 30 of
each year beginning in the year 2000 and ending in the
year 2007, the President shall transmit to Congress a
report on transfers to countries and entities of concern
during the preceding calendar year of the most significant categories of United States technologies and technical information with potential military applications.
‘‘(b) CONTENTS OF REPORT.—The report required by
subsection (a) shall include, at a minimum, the following:
‘‘(1) An assessment by the Director of Central Intelligence of efforts by countries and entities of concern
to acquire technologies and technical information referred to in subsection (a) during the preceding calendar year.
‘‘(2) An assessment by the Secretary of Defense, in
consultation with the Joint Chiefs of Staff and the
Director of Central Intelligence, of the cumulative
impact of licenses granted by the United States for
exports of technologies and technical information referred to in subsection (a) to countries and entities of
concern during the preceding 5-calendar year period
on—
‘‘(A) the military capabilities of such countries
and entities; and
‘‘(B) countermeasures that may be necessary to
overcome the use of such technologies and technical information.
‘‘(3) An audit by the Inspectors General of the Departments of Defense, State, Commerce, and Energy,
in consultation with the Director of Central Intel-
Page 1031
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
ligence and the Director of the Federal Bureau of Investigation, of the policies and procedures of the
United States Government with respect to the export
of technologies and technical information referred to
in subsection (a) to countries and entities of concern.
‘‘(4) The status of the implementation or other disposition of recommendations included in reports of
audits by Inspectors General that have been set forth
in a previous annual report under this section pursuant to paragraph (3).
‘‘(c) ADDITIONAL REQUIREMENT FOR FIRST REPORT.—
The first annual report required by subsection (a) shall
include an assessment by the Inspectors General of the
Departments of State, Defense, Commerce, and the
Treasury and the Inspector General of the Central Intelligence Agency of the adequacy of current export
controls and counterintelligence measures to protect
against the acquisition by countries and entities of
concern of United States technology and technical information referred to in subsection (a).
‘‘(d) SUPPORT OF OTHER AGENCIES.—Upon the request
of the officials responsible for preparing the assessments required by subsection (b), the heads of other departments and agencies shall make available to those
officials all information necessary to carry out the requirements of this section.
‘‘(e) CLASSIFIED AND UNCLASSIFIED REPORTS.—Each
report required by this section shall be submitted in
classified form and unclassified form.
‘‘(f) DEFINITION.—As used in this section, the term
‘countries and entities of concern’ means—
‘‘(1) any country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979 [50
U.S.C. App. 2405(j)] or other applicable law, to have
repeatedly provided support for acts of international
terrorism;
‘‘(2) any country that—
‘‘(A) has detonated a nuclear explosive device (as
defined in section 830(4) of the Nuclear Proliferation Prevention Act of 1994 (22 U.S.C. 6305(4))); and
‘‘(B) is not a member of the North Atlantic Treaty Organization; and
‘‘(3) any entity that—
‘‘(A) is engaged in international terrorism or activities in preparation thereof; or
‘‘(B) is directed or controlled by the government
of a country described in paragraph (1) or (2).
‘‘SEC. 1403. RESOURCES FOR EXPORT LICENSE
FUNCTIONS
‘‘(a) OFFICE OF DEFENSE TRADE CONTROLS.—
‘‘(1) IN GENERAL.—The Secretary of State shall take
the necessary steps to ensure that, in any fiscal year,
adequate resources are allocated to the functions of
the Office of Defense Trade Controls of the Department of State relating to the review and processing
of export license applications so as to ensure that
those functions are performed in a thorough and
timely manner.
‘‘(2) AVAILABILITY OF EXISTING APPROPRIATIONS.—
The Secretary of State shall take the necessary steps
to ensure that those funds made available under the
heading ‘Administration of Foreign Affairs, Diplomatic and Consular Programs’ in title IV of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1999,
as contained in the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public
Law 105–277) [112 Stat. 2681–92] are made available,
upon the enactment of this Act, to the Office of Defense Trade Controls of the Department of State to
carry out the purposes of the Office.
‘‘(b) DEFENSE THREAT REDUCTION AGENCY.—The Secretary of Defense shall take the necessary steps to ensure that, in any fiscal year, adequate resources are allocated to the functions of the Defense Threat Reduction Agency of the Department of Defense relating to
the review of export license applications so as to ensure
that those functions are performed in a thorough and
timely manner.
§ 2778
‘‘(c) UPDATING OF STATE DEPARTMENT REPORT.—Not
later than March 1, 2000, the Secretary of State, in consultation with the Secretary of Defense and the Secretary of Commerce, shall transmit to Congress a report updating the information reported to Congress
under section 1513(d)(3) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999
[Pub. L. 105–261] (22 U.S.C. 2778 note).
‘‘SEC. 1404. SECURITY IN CONNECTION WITH SATELLITE EXPORT LICENSING
‘‘As a condition of the export license for any satellite
to be launched in a country subject to section 1514 of
the Strom Thurmond National Defense Authorization
Act for Fiscal Year 1999 [Pub. L. 105–261] (22 U.S.C. 2778
note), the Secretary of State shall require the following:
‘‘(1) That the technology transfer control plan required by section 1514(a)(1) of the Strom Thurmond
National Defense Authorization Act for Fiscal Year
1999 (22 U.S.C. 2778 note) be prepared by the Department of Defense and the licensee, and that the plan
set forth enhanced security arrangements for the
launch of the satellite, both before and during launch
operations.
‘‘(2) That each person providing security for the
launch of that satellite—
‘‘(A) report directly to the launch monitor with
regard to issues relevant to the technology transfer
control plan;
‘‘(B) have received appropriate training in the
International Trafficking in Arms Regulations
(hereafter in this title [enacting this note and
amending provisions set out as a note under section
2404 of Title 50, Appendix, War and National Defense] referred to as ‘ITAR’).
‘‘(C) have significant experience and expertise
with satellite launches; and
‘‘(D) have been investigated in a manner at least
as comprehensive as the investigation required for
the issuance of a security clearance at the level
designated as ‘Secret’.
‘‘(3) That the number of such persons providing security for the launch of the satellite shall be sufficient to maintain 24-hour security of the satellite and
related launch vehicle and other sensitive technology.
‘‘(4) That the licensee agree to reimburse the Department of Defense for all costs associated with the
provision of security for the launch of the satellite.
‘‘SEC. 1405. REPORTING OF TECHNOLOGY TRANSMITTED TO PEOPLE’S REPUBLIC OF CHINA
AND OF FOREIGN LAUNCH SECURITY VIOLATIONS
‘‘(a) MONITORING OF INFORMATION.—The Secretary of
Defense shall require that space launch monitors of the
Department of Defense assigned to monitor launches in
the People’s Republic of China maintain records of all
information authorized to be transmitted to the People’s Republic of China with regard to each space
launch that the monitors are responsible for monitoring, including copies of any documents authorized for
such transmission, and reports on launch-related activities.
‘‘(b) TRANSMISSION TO OTHER AGENCIES.—The Secretary of Defense shall ensure that records under subsection (a) are transmitted on a current basis to appropriate elements of the Department of Defense and to
the Department of State, the Department of Commerce, and the Central Intelligence Agency.
‘‘(c) RETENTION OF RECORDS.—Records described in
subsection (a) shall be retained for at least the period
of the statute of limitations for violations of the Arms
Export Control Act [22 U.S.C. 2751 et seq.].
‘‘(d) GUIDELINES.—The Secretary of Defense shall prescribe guidelines providing space launch monitors of
the Department of Defense with the responsibility and
the ability to report serious security violations, problems, or other issues at an overseas launch site directly
to the headquarters office of the responsible Department of Defense component.
§ 2778
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
‘‘SEC. 1408. ENHANCED MULTILATERAL EXPORT
CONTROLS
‘‘(a) NEW INTERNATIONAL CONTROLS.—The President
shall seek to establish new enhanced international controls on technology transfers that threaten international peace and United States national security.
‘‘(b) IMPROVED SHARING OF INFORMATION.—The President shall take appropriate actions to improve the
sharing of information by nations that are major exporters of technology so that the United States can
track movements of technology covered by the
Wassenaar Arrangement and enforce technology controls and re-export requirements for such technology.
‘‘(c) DEFINITION.—As used in this section, the term
‘Wassenaar Arrangement’ means the multilateral export control regime covering conventional armaments
and sensitive dual-use goods and technologies that was
agreed to by 33 co-founding countries in July 1996 and
began operation in September 1996.
‘‘SEC. 1409. ENHANCEMENT OF ACTIVITIES OF DEFENSE THREAT REDUCTION AGENCY
‘‘(a) IN GENERAL.—Not later than 180 days after the
date of the enactment of this Act [Oct. 5, 1999], the Secretary of Defense shall prescribe regulations to—
‘‘(1) authorize the personnel of the Defense Threat
Reduction Agency (DTRA) who monitor satellite
launch campaigns overseas to suspend such campaigns at any time if the suspension is required for
purposes of the national security of the United
States;
‘‘(2) ensure that persons assigned as space launch
campaign monitors are provided sufficient training
and have adequate experience in the regulations prescribed by the Secretary of State known as the ITAR
and have significant experience and expertise with
satellite technology, launch vehicle technology, and
launch operations technology;
‘‘(3) ensure that adequate numbers of such monitors
are assigned to space launch campaigns so that 24hour, 7-day per week coverage is provided;
‘‘(4) take steps to ensure, to the maximum extent
possible, the continuity of service by monitors for the
entire space launch campaign period (from satellite
marketing to launch and, if necessary, completion of
a launch failure analysis);
‘‘(5) adopt measures designed to make service as a
space launch campaign monitor an attractive career
opportunity;
‘‘(6) allocate funds and other resources to the Agency at levels sufficient to prevent any shortfalls in the
number of such personnel;
‘‘(7) establish mechanisms in accordance with the
provisions of section 1514(a)(2)(A) of the Strom Thurmond National Defense Authorization Act for Fiscal
Year 1999 (Public Law 105–261; 112 Stat. 2175; 22 U.S.C.
2778 note) that provide for—
‘‘(A) the payment to the Department of Defense
by the person or entity receiving the launch monitoring services concerned, before the beginning of
a fiscal year, of an amount equal to the amount estimated to be required by the Department to monitor the launch campaigns during that fiscal year;
‘‘(B) the reimbursement of the Department of Defense, at the end of each fiscal year, for amounts
expended by the Department in monitoring the
launch campaigns in excess of the amount provided
under subparagraph (A); and
‘‘(C) the reimbursement of the person or entity
receiving the launch monitoring services if the
amount provided under subparagraph (A) exceeds
the amount actually expended by the Department
of Defense in monitoring the launch campaigns;
‘‘(8) review and improve guidelines on the scope of
permissible discussions with foreign persons regarding technology and technical information, including
the technology and technical information that should
not be included in such discussions;
‘‘(9) provide, in conjunction with other Federal
agencies, on at least an annual basis, briefings to the
Page 1032
officers and employees of United States commercial
satellite entities on United States export license
standards, guidelines, and restrictions, and encourage
such officers and employees to participate in such
briefings;
‘‘(10) establish a system for—
‘‘(A) the preparation and filing by personnel of
the Agency who monitor satellite launch campaigns overseas of detailed reports of all relevant
activities observed by such personnel in the course
of monitoring such campaigns;
‘‘(B) the systematic archiving of reports filed
under subparagraph (A); and
‘‘(C) the preservation of such reports in accordance with applicable laws; and
‘‘(11) establish a counterintelligence program within the Agency as part of its satellite launch monitoring program.
‘‘(b) ANNUAL REPORT ON IMPLEMENTATION OF SATELLITE TECHNOLOGY SAFEGUARDS.—(1) The Secretary of
Defense and the Secretary of State shall each submit to
Congress each year, as part of the annual report for
that year under section 1514(a)(8) of the Strom Thurmond National Defense Authorization Act for Fiscal
Year 1999 [Pub. L. 105–261, 22 U.S.C. 2778 note], the following:
‘‘(A) A summary of the satellite launch campaigns
and related activities monitored by the Defense
Threat Reduction Agency during the preceding fiscal
year.
‘‘(B) A description of any license infractions or violations that may have occurred during such campaigns and activities.
‘‘(C) A description of the personnel, funds, and
other resources dedicated to the satellite launch
monitoring program of the Agency during that fiscal
year.
‘‘(D) An assessment of the record of United States
satellite makers in cooperating with Agency monitors, and in complying with United States export
control laws, during that fiscal year.
‘‘(2) Each report under paragraph (1) shall be submitted in classified form and unclassified form.
‘‘SEC. 1410. TIMELY NOTIFICATION OF LICENSING
DECISIONS BY THE DEPARTMENT OF STATE
‘‘Not later than 180 days after the date of the enactment of this Act [Oct. 5, 1999], the Secretary of State
shall prescribe regulations to provide timely notice to
the manufacturer of a commercial satellite of United
States origin of the final determination of the decision
on the application for a license involving the overseas
launch of such satellite.
‘‘SEC. 1411. ENHANCED INTELLIGENCE CONSULTATION ON SATELLITE LICENSE APPLICATIONS
‘‘(a) CONSULTATION DURING REVIEW OF APPLICATIONS.—The Secretary of State and Secretary of Defense, as appropriate, shall consult with the Director of
Central Intelligence during the review of any application for a license involving the overseas launch of a
commercial satellite of United States origin. The purpose of the consultation is to assure that the launch of
the satellite, if the license is approved, will meet the
requirements necessary to protect the national security interests of the United States.
‘‘(b) ADVISORY GROUP.—(1) The Director of Central Intelligence shall establish within the intelligence community an advisory group to provide information and
analysis to Congress, and to appropriate departments
and agencies of the Federal Government, on the national security implications of granting licenses involving the overseas launch of commercial satellites of
United States origin.
‘‘(2) The advisory group shall include technicallyqualified representatives of the Central Intelligence
Agency, the Defense Intelligence Agency, the National
Security Agency, the National Air Intelligence Center,
and the Department of State Bureau of Intelligence and
Research and representatives of other elements of the
intelligence community with appropriate expertise.
Page 1033
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
‘‘(3) In addition to the duties under paragraph (1), the
advisory group shall—
‘‘(A) review, on a continuing basis, information relating to transfers of satellite, launch vehicle, or
other technology or knowledge with respect to the
course of the overseas launch of commercial satellites of United States origin; and
‘‘(B) analyze the potential impact of such transfers
on the space and military systems, programs, or activities of foreign countries.
‘‘(4) The Director of the Nonproliferation Center of
the Central Intelligence Agency shall serve as chairman of the advisory group.
‘‘(5)(A) The advisory group shall, upon request (but
not less often than annually), submit reports on the
matters referred to in paragraphs (1) and (3) to the appropriate committees of Congress and to appropriate
departments and agencies of the Federal Government.
‘‘(B) The first annual report under subparagraph (A)
shall be submitted not later than one year after the
date of the enactment of this Act [Oct. 5, 1999].
‘‘(c) INTELLIGENCE COMMUNITY DEFINED.—In this section, the term ‘intelligence community’ has the meaning given that term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
‘‘SEC. 1412. INVESTIGATIONS OF VIOLATIONS OF
EXPORT CONTROLS BY UNITED STATES SATELLITE MANUFACTURERS
‘‘(a) NOTICE TO CONGRESS OF INVESTIGATIONS.—The
President shall promptly notify the appropriate committees of Congress whenever an investigation is
undertaken by the Department of Justice of—
‘‘(1) an alleged violation of United States export
control laws in connection with a commercial satellite of United States origin; or
‘‘(2) an alleged violation of United States export
control laws in connection with an item controlled
under section 38 of the Arms Export Control Act (22
U.S.C. 2778) that is likely to cause significant harm
or damage to the national security interests of the
United States.
‘‘(b) NOTICE TO CONGRESS OF CERTAIN EXPORT WAIVERS.—The President shall promptly notify the appropriate committees of Congress whenever an export
waiver pursuant to section 902 of the Foreign Relations
Authorization Act, Fiscal Years 1990 and 1991 [Pub. L.
101–246] (22 U.S.C. 2151 note) is granted on behalf of any
United States person that is the subject of an investigation described in subsection (a). The notice shall
include a justification for the waiver.
‘‘(c) EXCEPTION.—The requirements in subsections (a)
and (b) shall not apply if the President determines that
notification of the appropriate committees of Congress
under such subsections would jeopardize an on-going
criminal investigation. If the President makes such a
determination, the President shall provide written notification of such determination to the Speaker of the
House of Representatives, the majority leader of the
Senate, the minority leader of the House of Representatives, and the minority leader of the Senate. The notification shall include a justification for the determination.
‘‘(d) IDENTIFICATION OF PERSONS SUBJECT TO INVESTIGATION.—The Secretary of State and the Attorney
General shall develop appropriate mechanisms to identify, for the purposes of processing export licenses for
commercial satellites, persons who are the subject of
an investigation described in subsection (a).
‘‘(e) PROTECTION OF CLASSIFIED AND OTHER SENSITIVE
INFORMATION.—The appropriate committees of Congress
shall ensure that appropriate procedures are in place to
protect from unauthorized disclosure classified information, information relating to intelligence sources
and methods, and sensitive law enforcement information that is furnished to those committees pursuant to
this section.
‘‘(f) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to modify or supersede any
other requirement to report information on intel-
§ 2778
ligence activities to Congress, including the requirement under section 501 of the National Security Act of
1947 (50 U.S.C. 413).
‘‘(g) DEFINITIONS.—As used in this section:
‘‘(1) The term ‘appropriate committees of Congress’
means the following:
‘‘(A) The Committee on Armed Services, the Committee on Foreign Relations, and the Select Committee on Intelligence of the Senate.
‘‘(B) The Committee on Armed Services, the Committee on International Relations [now Committee
on Foreign Affairs], and the Permanent Select
Committee on Intelligence of the House of Representatives.
‘‘(2) The term ‘United States person’ means any
United States resident or national (other than an individual resident outside the United States and employed by other than a United States person), any domestic concern (including any permanent domestic
establishment of any foreign concern), and any foreign subsidiary or affiliate (including any permanent
foreign establishment) of any domestic concern
which is controlled in fact by such domestic concern,
as determined under regulations of the President.’’
[Memorandum of President of the United States, Jan.
5, 2000, 65 F.R. 2279, delegated to Secretary of Defense
the duties and responsibilities of the President under
section 1402 of Public Law 106–65 and directed Department of Defense to prepare the report required by section 1402 with the assistance of Department of State,
Department of Commerce, Department of Energy, Department of the Treasury, Director of Central Intelligence, and Federal Bureau of Investigation and to obtain concurrence on the report from Department of
State, Department of Commerce, Director of Central
Intelligence on behalf of Intelligence Community, Department of the Treasury, and Federal Bureau of Investigation prior to submission to Congress.]
[Reference to the Director of Central Intelligence or
the Director of the Central Intelligence Agency in the
Director’s capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of
the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108–458, set out as
a note under section 401 of Title 50, War and National
Defense.]
SATELLITE EXPORT CONTROLS
Pub. L. 105–261, div. A, title XV, subtitle B, Oct. 17,
1998, 112 Stat. 2173, as amended by Pub. L. 105–277, div.
C, title I, § 146(a), Oct. 21, 1998, 112 Stat. 2681–610, provided that:
‘‘SEC. 1511. SENSE OF CONGRESS.
‘‘It is the sense of Congress that—
‘‘(1) United States business interests must not be
placed above United States national security interests;
‘‘(2) United States foreign policy and the policies of
the United States regarding commercial relations
with other countries should affirm the importance of
observing and adhering to the Missile Technology
Control Regime (MTCR);
‘‘(3) the United States should encourage universal
observance of the Guidelines to the Missile Technology Control Regime;
‘‘(4) the exportation or transfer of advanced communication satellites and related technologies from
United States sources to foreign recipients should not
increase the risks to the national security of the
United States;
‘‘(5) due to the military sensitivity of the technologies involved, it is in the national security interests of the United States that United States satellites and related items be subject to the same export controls that apply under United States law and
practices to munitions;
§ 2778
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
‘‘(6) the United States should not issue any blanket
waiver of the suspensions contained in section 902 of
the Foreign Relations Authorization Act, Fiscal
Years 1990 and 1991 (Public Law 101–246) [22 U.S.C. 2151
note], regarding the export of satellites of United
States origin intended for launch from a launch vehicle owned by the People’s Republic of China;
‘‘(7) the United States should pursue policies that
protect and enhance the United States space launch
industry; and
‘‘(8) the United States should not export to the People’s Republic of China missile equipment or technology that would improve the missile or space
launch capabilities of the People’s Republic of China.
‘‘SEC. 1512. CERTIFICATION OF EXPORTS OF MISSILE EQUIPMENT OR TECHNOLOGY TO CHINA.
‘‘(a) CERTIFICATION.—The President shall certify to
the Congress at least 15 days in advance of any export
to the People’s Republic of China of missile equipment
or technology (as defined in section 74 of the Arms Export Control Act (22 U.S.C. 2797c)) that—
‘‘(1) such export is not detrimental to the United
States space launch industry; and
‘‘(2) the missile equipment or technology, including
any indirect technical benefit that could be derived
from such export, will not measurably improve the
missile or space launch capabilities of the People’s
Republic of China.
‘‘(b) EXCEPTION.—The certification requirement contained in subsection (a) shall not apply to the export of
inertial reference units and components in manned civilian aircraft or supplied as spare or replacement
parts for such aircraft.
‘‘SEC. 1513. SATELLITE CONTROLS UNDER THE
UNITED STATES MUNITIONS LIST.
‘‘(a) CONTROL OF SATELLITES ON THE UNITED STATES
MUNITIONS LIST.—Notwithstanding any other provision
of law, all satellites and related items that are on the
Commerce Control List of dual-use items in the Export
Administration Regulations (15 CFR part 730 et seq.) on
the date of the enactment of this Act [Oct. 17, 1998]
shall be transferred to the United States Munitions
List and controlled under section 38 of the Arms Export
Control Act (22 U.S.C. 2778).
‘‘(b) DEFENSE TRADE CONTROLS REGISTRATION FEES.—
[Amended section 2717 of this title.]
‘‘(c) EFFECTIVE DATE.—(1) Subsection (a) shall take
effect on March 15, 1999, and shall not apply to any export license issued before such effective date or to any
export license application made under the Export Administration Regulations before such effective date.
‘‘(2) The amendments made by subsection (b) [amending section 2717 of this title] shall be effective as of October 1, 1998.
‘‘(d) REPORT.—Not later than January 1, 1999, the Secretary of State, in consultation with the Secretary of
Defense and the Secretary of Commerce, shall submit
to Congress a report containing—
‘‘(1) a detailed description of the plans of the Department of State to implement the requirements of
this section, including any organizational changes
that are required and any Executive orders or regulations that may be required;
‘‘(2) an identification and explanation of any steps
that should be taken to improve the license review
process for exports of the satellites and related items
described in subsection (a), including measures to
shorten the timelines for license application reviews,
and any measures relating to the transparency of the
license review process and dispute resolution procedures;
‘‘(3) an evaluation of the adequacy of resources
available to the Department of State, including fiscal
and personnel resources, to carry out the additional
activities required by this section; and
‘‘(4) any recommendations for additional actions,
including possible legislation, to improve the export
licensing process under the Arms Export Control Act
[22 U.S.C. 2751 et seq.] for the satellites and related
items described in subsection (a).
Page 1034
‘‘SEC. 1514. NATIONAL SECURITY CONTROLS ON
SATELLITE EXPORT LICENSING.
‘‘(a) ACTIONS BY THE PRESIDENT.—Notwithstanding
any other provision of law, the President shall take
such actions as are necessary to implement the following requirements for improving national security controls in the export licensing of satellites and related
items:
‘‘(1) MANDATORY TECHNOLOGY CONTROL PLANS.—All
export licenses shall require a technology transfer
control plan approved by the Secretary of Defense
and an encryption technology transfer control plan
approved by the Director of the National Security
Agency.
‘‘(2) MANDATORY MONITORS AND REIMBURSEMENT.—
‘‘(A) MONITORING OF PROPOSED FOREIGN LAUNCH OF
SATELLITES.—In any case in which a license is approved for the export of a satellite or related items
for launch in a foreign country, the Secretary of
Defense shall monitor all aspects of the launch in
order to ensure that no unauthorized transfer of
technology occurs, including technical assistance
and technical data. The costs of such monitoring
services shall be fully reimbursed to the Department of Defense by the person or entity receiving
such services. All reimbursements received under
this subparagraph shall be credited to current appropriations available for the payment of the costs
incurred in providing such services.
‘‘(B) CONTENTS OF MONITORING.—The monitoring
under subparagraph (A) shall cover, but not be limited to—
‘‘(i) technical discussions and activities, including the design, development, operation, maintenance, modification, and repair of satellites, satellite components, missiles, other equipment,
launch facilities, and launch vehicles;
‘‘(ii) satellite processing and launch activities,
including launch preparation, satellite transportation, integration of the satellite with the
launch vehicle, testing and checkout prior to
launch, satellite launch, and return of equipment
to the United States;
‘‘(iii) activities relating to launch failure,
delay, or cancellation, including post-launch failure investigations; and
‘‘(iv) all other aspects of the launch.
‘‘(3) MANDATORY LICENSES FOR CRASH-INVESTIGATIONS.—In the event of the failure of a launch from a
foreign country of a satellite of United States origin—
‘‘(A) the activities of United States persons or entities in connection with any subsequent investigation of the failure are subject to the controls established under section 38 of the Arms Export Control
Act [22 U.S.C. 2778], including requirements for licenses issued by the Secretary of State for participation in that investigation;
‘‘(B) officials of the Department of Defense shall
monitor all activities associated with the investigation to insure against unauthorized transfer of
technical data or services; and
‘‘(C) the Secretary of Defense shall establish and
implement a technology transfer control plan for
the conduct of the investigation to prevent the
transfer of information that could be used by the
foreign country to improve its missile or space
launch capabilities.
‘‘(4) MANDATORY NOTIFICATION AND CERTIFICATION.—
All technology transfer control plans for satellites or
related items shall require any United States person
or entity involved in the export of a satellite of
United States origin or related items to notify the
Department of Defense in advance of all meetings and
interactions with any foreign person or entity providing launch services and require the United States person or entity to certify after the launch that it has
complied with this notification requirement.
‘‘(5) MANDATORY INTELLIGENCE COMMUNITY REVIEW.—
The Secretary of Commerce and the Secretary of
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
State shall provide to the Secretary of Defense and
the Director of Central Intelligence copies of all export license applications and technical assistance
agreements submitted for approval in connection
with launches in foreign countries of satellites to verify the legitimacy of the stated end-user or end-users.
‘‘(6) MANDATORY SHARING OF APPROVED LICENSES AND
AGREEMENTS.—The Secretary of State shall provide
copies of all approved export licenses and technical
assistance agreements associated with launches in
foreign countries of satellites to the Secretaries of
Defense and Energy, the Director of Central Intelligence, and the Director of the Arms Control and
Disarmament Agency.
‘‘(7) MANDATORY NOTIFICATION TO CONGRESS ON LICENSES.—Upon issuing a license for the export of a
satellite or related items for launch in a foreign
country, the head of the department or agency issuing the license shall so notify Congress.
‘‘(8) MANDATORY REPORTING ON MONITORING ACTIVITIES.—The Secretary of Defense shall provide to Congress an annual report on the monitoring of all
launches in foreign countries of satellites of United
States origin.
‘‘(9) ESTABLISHING SAFEGUARDS PROGRAM.—The Secretary of Defense shall establish a program for recruiting, training, and maintaining a staff dedicated
to monitoring launches in foreign countries of satellites and related items of United States origin.
‘‘(b) EXCEPTION.—This section shall not apply to the
export of a satellite or related items for launch in, or
by nationals of, a country that is a member of the
North Atlantic Treaty Organization or that is a major
non-NATO ally of the United States.
‘‘(c) EFFECTIVE DATE.—The President shall take the
actions required by subsection (a) not later than 45
days after the date of the enactment of this Act [Oct.
17, 1998].
‘‘SEC. 1515. REPORT ON EXPORT OF SATELLITES
FOR LAUNCH BY PEOPLE’S REPUBLIC OF
CHINA.
‘‘(a) REQUIREMENT FOR REPORT.—Each report to Congress submitted pursuant to subsection (b) of section
902 of the Foreign Relations Authorization Act, Fiscal
Years 1990 and 1991 (22 U.S.C. 2151 note; Public Law
101–246) to waive the restrictions contained in subsection (a) of that section on the export to the People’s
Republic of China of any satellite of United States origin or related items shall be accompanied by a detailed
justification setting forth the following:
‘‘(1) A detailed description of all militarily sensitive characteristics integrated within, or associated
with, the satellite.
‘‘(2) An estimate of the number of United States civilian contract personnel expected to be needed in
country to carry out the proposed satellite launch.
‘‘(3)(A) A detailed description of the United States
Government’s plan to monitor the proposed satellite
launch to ensure that no unauthorized transfer of
technology occurs, together with an estimate of the
number of officers and employees of the United
States that are expected to be needed in country to
carry out monitoring of the proposed satellite
launch; and
‘‘(B) the estimated cost to the Department of Defense of monitoring the proposed satellite launch and
the amount of such cost that is to be reimbursed to
the department.
‘‘(4) The reasons why the proposed satellite launch
is in the national security interest of the United
States.
‘‘(5) The impact of the proposed export on employment in the United States, including the number of
new jobs created in the United States, on a State-byState basis, as a direct result of the proposed export.
‘‘(6) The number of existing jobs in the United
States that would be lost, on a State-by-State basis,
as a direct result of the proposed export not being licensed.
§ 2778
‘‘(7) The impact of the proposed export on the balance of trade between the United States and the People’s Republic of China and on reducing the current
United States trade deficit with the People’s Republic of China.
‘‘(8) The impact of the proposed export on the transition of the People’s Republic of China from a nonmarket economy to a market economy and the longterm economic benefit to the United States.
‘‘(9) The impact of the proposed export on opening
new markets to United States-made products through
the purchase by the People’s Republic of China of
United States-made goods and services not directly
related to the proposed export.
‘‘(10) The impact of the proposed export on reducing
acts, policies, and practices that constitute significant trade barriers to United States exports or foreign direct investment in the People’s Republic of
China by United States nationals.
‘‘(11) The increase that will result from the proposed export in the overall market share of the
United States for goods and services in comparison to
Japan, France, Germany, the United Kingdom, and
Russia.
‘‘(12) The impact of the proposed export on the willingness of the People’s Republic of China to modify
its commercial and trade laws, practices, and regulations to make United States-made goods and services
more accessible to that market.
‘‘(13) The impact of the proposed export on the willingness of the People’s Republic of China to reduce
formal and informal trade barriers and tariffs, duties,
and other fees on United States-made goods and services entering that country.
‘‘(b) MILITARILY SENSITIVE CHARACTERISTICS DEFINED.—In this section, the term ‘militarily sensitive
characteristics’ includes antijamming capability, antennas, crosslinks, baseband processing, encryption devices, radiation-hardened devices, propulsion systems,
pointing accuracy, kick motors, and other such characteristics as are specified by the Secretary of Defense.
‘‘SEC. 1516. RELATED ITEMS DEFINED.
‘‘In this subtitle, the term ‘related items’ means the
satellite fuel, ground support equipment, test equipment, payload adapter or interface hardware, replacement parts, and non-embedded solid propellant orbit
transfer engines described in the report submitted to
Congress by the Department of State on February 6,
1998, pursuant to section 38(f) of the Arms Export Control Act (22 U.S.C. 2778(f)).’’
[Pub. L. 105–277, div. C, title I, § 146(b), Oct. 21, 1998,
112 Stat. 2681–610, provided that: ‘‘The amendments
made by this section [amending Pub. L. 105–261, § 1512,
set out above] shall take effect on the later of—
[‘‘(1) the enactment of this Act [Oct. 21, 1998]; or
[‘‘(2) the enactment of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999
[Pub. L. 105–261; Oct. 17, 1998].’’]
[Reference to the Director of Central Intelligence or
the Director of the Central Intelligence Agency in the
Director’s capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of
the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108–458, set out as
a note under section 401 of Title 50, War and National
Defense.]
[For abolition, transfer of functions, and treatment
of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of this title.]
DELEGATION OF CERTIFICATIONS UNDER SECTION 1512 OF
PUBLIC LAW 105–261
Determination of President of the United States, No.
2009–31, Sept. 29, 2009, 74 F.R. 50913, provided:
Memorandum for the Secretary of Commerce
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
By virtue of the authority vested in me as President
by the Constitution and the laws of the United States
of America, including section 301 of Title 3, United
States Code, I hereby delegate to you the functions of
the President under section 1512 of the National Defense Authorization Act for Fiscal Year 1999 (NDAA).
In the performance of your responsibility under this
memorandum, you shall consult, as appropriate, the
heads of other executive departments and agencies.
You are authorized and directed to publish this determination in the Federal Register.
BARACK OBAMA.
LANDMINE EXPORT MORATORIUM
Pub. L. 102–484, div. A, title XIII, § 1365, Oct. 23, 1992,
106 Stat. 2561, as amended by Pub. L. 103–160, div. A,
title XI, § 1182(c)(3), title XIV, § 1423(c), Nov. 30, 1993, 107
Stat. 1772, 1832; Pub. L. 104–107, title V, § 558, Feb. 12,
1996, 110 Stat. 743; Pub. L. 104–208, div. A, title I, § 101(c)
[title V, § 556], Sept. 30, 1996, 110 Stat. 3009–121, 3009–161;
Pub. L. 106–113, div. B, § 1000(a)(2) [title V, § 553], Nov. 29,
1999, 113 Stat. 1535, 1501A–99; Pub. L. 107–115, title V,
§ 548, Jan. 10, 2002, 115 Stat. 2156; Pub. L. 110–161, div. J,
title VI, § 634(j), Dec. 26, 2007, 121 Stat. 2329, provided
that:
‘‘(a) FINDINGS.—The Congress makes the following
findings:
‘‘(1) Anti-personnel landmines, which are specifically designed to maim and kill people, have been
used indiscriminately in dramatically increasing
numbers, primarily in insurgencies in poor developing countries. Noncombatant civilians, including tens
of thousands of children, have been the primary victims.
‘‘(2) Unlike other military weapons, landmines
often remain implanted and undiscovered after conflict has ended, causing untold suffering to civilian
populations. In Afghanistan, Cambodia, Laos, Vietnam, and Angola, tens of millions of unexploded landmines have rendered whole areas uninhabitable. In
Afghanistan, an estimated hundreds of thousands of
people have been maimed and killed by landmines
during the 14-year civil war. In Cambodia, more than
20,000 civilians have lost limbs and another 60 are
being maimed each month from landmines.
‘‘(3) Over 35 countries are known to manufacture
landmines, including the United States. However, the
United States is not a major exporter of landmines.
During the past ten years the Department of State
has approved ten licenses for the commercial export
of anti-personnel landmines valued at $980,000, and
during the past five years the Department of Defense
has approved the sale of 13,156 anti-personnel landmines valued at $841,145.
‘‘(4) The United States signed, but has not ratified,
the 1981 Convention on Prohibitions or Restrictions
on the Use of Certain Conventional Weapons Which
May Be Deemed To Be Excessively Injurious or To
Have Indiscriminate Effects. The Convention prohibits the indiscriminate use of landmines.
‘‘(5) When it signed the Convention, the United
States stated: ‘We believe that the Convention represents a positive step forward in efforts to minimize
injury or damage to the civilian population in time of
armed conflict. Our signature of the Convention reflects the general willingness of the United States to
adopt practical and reasonable provisions concerning
the conduct of military operations, for the purpose of
protecting noncombatants.’.
‘‘(6) The President should submit the Convention to
the Senate for its advice and consent to ratification,
and the President should actively negotiate under
United Nations auspices or other auspices an international agreement, or a modification of the Convention, to prohibit the sale, transfer or export of antipersonnel landmines. Such an agreement or modification would be an appropriate response to the end of
the Cold War and the promotion of arms control
agreements to reduce the indiscriminate killing and
maiming of civilians.
Page 1036
‘‘(7) The United States should set an example for
other countries in such negotiations, by implementing a one-year moratorium on the sale, transfer or
export of anti-personnel landmines.
‘‘(b) STATEMENT OF POLICY.—(1) It shall be the policy
of the United States to seek verifiable international
agreements prohibiting the sale, transfer, or export,
and further limiting the use, production, possession,
and deployment of anti-personnel landmines.
‘‘(2) It is the sense of the Congress that the President
should actively seek to negotiate under United Nations
auspices or other auspices an international agreement,
or a modification of the Convention, to prohibit the
sale, transfer, or export of anti-personnel landmines.
‘‘(c) MORATORIUM ON TRANSFERS OF ANTI-PERSONNEL
LANDMINES ABROAD.—During the 22 year period beginning on October 23, 1992—
‘‘(1) no sale may be made or financed, no transfer
may be made, and no license for export may be issued, under the Arms Export Control Act [22 U.S.C.
2751 et seq.], with respect to any anti-personnel landmine; and
‘‘(2) no assistance may be provided under the Foreign Assistance Act of 1961 [22 U.S.C. 2151 et seq.],
with respect to the provision of any anti-personnel
landmine.
‘‘(d) DEFINITION.—For purposes of this section, the
term ‘anti-personnel landmine’ means—
‘‘(1) any munition placed under, on, or near the
ground or other surface area, or delivered by artillery, rocket, mortar, or similar means or dropped
from an aircraft and which is designed to be detonated or exploded by the presence, proximity, or contact of a person;
‘‘(2) any device or material which is designed, constructed, or adapted to kill or injure and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs
an apparently safe act;
‘‘(3) any manually-emplaced munition or device designed to kill, injure, or damage and which is actuated by remote control or automatically after a lapse
of time.’’
[Section 634(j) of title VI of div. J of Pub. L. 110–161,
which directed the amendment of section 1365(c) of Pub.
L. 102–484, set out above, by substituting ‘‘During the 22
year period beginning on October 23, 1992’’ for ‘‘During
the 16 year period beginning on October 23, 1992’’ before
the period at the end, was executed by making the substitution in the introductory provisions, to reflect the
probable intent of Congress.]
[Section 1000(a)(2) [title V, § 553] of div. B of Pub. L.
106–113, which directed the amendment of section
1365(c) of Pub. L. 102–484, set out above, by substituting
‘‘During the 11-year’’ for ‘‘During the five-year’’, was
executed by making the substitution for ‘‘During the
eight-year’’.]
ARMS TRANSFERS RESTRAINT POLICY FOR MIDDLE EAST
AND PERSIAN GULF REGION
Pub. L. 102–138, title IV, Oct. 28, 1991, 105 Stat. 718,
provided that:
‘‘SEC. 401. FINDINGS.
‘‘The Congress finds that—
‘‘(1) nations in the Middle East and Persian Gulf region, which accounted for over 40 percent of the
international trade in weapons and related equipment
and services during the decade of the 1980’s, are the
principal market for the worldwide arms trade;
‘‘(2) regional instability, large financial resources,
and the desire of arms-supplying governments to gain
influence in the Middle East and Persian Gulf region,
contribute to a regional arms race;
‘‘(3) the continued proliferation of weapons and related equipment and services contribute further to a
regional arms race in the Middle East and Persian
Gulf region that is politically, economically, and
militarily destabilizing;
‘‘(4) the continued proliferation of unconventional
weapons, including nuclear, biological, and chemical
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
weapons, as well as delivery systems associated with
those weapons, poses an urgent threat to security and
stability in the Middle East and Persian Gulf region;
‘‘(5) the continued proliferation of ballistic missile
technologies and ballistic missile systems that are
capable of delivering conventional, nuclear, biological, or chemical warheads undermines security and
stability in the Middle East and Persian Gulf region;
‘‘(6) future security and stability in the Middle East
and Persian Gulf region would be enhanced by establishing a stable military balance among regional
powers by restraining and reducing both conventional
and unconventional weapons;
‘‘(7) security, stability, peace, and prosperity in the
Middle East and Persian Gulf region are important to
the welfare of the international economy and to the
national security interests of the United States;
‘‘(8) future security and stability in the Middle East
and Persian Gulf region would be enhanced through
the development of a multilateral arms transfer and
control regime similar to those of the Nuclear Suppliers’ Group, the Missile Technology Control Regime, and the Australia Chemical Weapons Suppliers
Group;
‘‘(9) such a regime should be developed, implemented, and agreed to through multilateral negotiations, including under the auspices of the 5 permanent members of the United Nations Security Council;
‘‘(10) confidence-building arms control measures
such as the establishment of a centralized arms trade
registry at the United Nations, greater multinational
transparency on the transfer of defense articles and
services prior to agreement or transfer, cooperative
verification measures, advanced notification of military exercises, information exchanges, on-site inspections, and creation of a Middle East and Persian Gulf
Conflict Prevention Center, are important to implement an effective multilateral arms transfer and control regime;
‘‘(11) as an interim step, the United States should
consider introducing, during the ongoing negotiations on confidence security-building measures at the
Conference on Security and Cooperation in Europe
(CSCE) [now the Organization for Security and Cooperation in Europe], a proposal regarding the international exchange of information, on an annual basis,
on the sale and transfer of major military equipment,
particularly to the Middle East and Persian Gulf region; and
‘‘(12) such a regime should be applied to other regions with the ultimate objective of achieving an effective global arms transfer and control regime, implemented and enforced through the United Nations
Security Council, that—
‘‘(A) includes a linkage of humanitarian and developmental objectives with security objectives in
Third World countries, particularly the poorest of
the poor countries; and
‘‘(B) encourages countries selling military equipment and services to consider the following factors
before making conventional arms sales: the security needs of the purchasing countries, the level of
defense expenditures by the purchasing countries,
and the level of indigenous production of the purchasing countries.
‘‘SEC. 402. MULTILATERAL ARMS TRANSFER AND
CONTROL REGIME.
‘‘(a) IMPLEMENTATION OF THE REGIME.—
‘‘(1) CONTINUING NEGOTIATIONS.—The President shall
continue negotiations among the 5 permanent members of the United Nations Security Council and commit the United States to a multilateral arms transfer
and control regime for the Middle East and Persian
Gulf region.
‘‘(2) PROPOSING A TEMPORARY MORATORIUM DURING
NEGOTIATIONS.—In the context of these negotiations,
the President should propose to the 5 permanent
members of the United Nations Security Council a
§ 2778
temporary moratorium on the sale and transfer of
major military equipment to nations in the Middle
East and Persian Gulf region until such time as the
5 permanent members agree to a multilateral arms
transfer and control regime.
‘‘(b) PURPOSE OF THE REGIME.—The purpose of the
multilateral arms transfer and control regime should
be—
‘‘(1) to slow and limit the proliferation of conventional weapons in the Middle East and Persian Gulf
region with the aim of preventing destabilizing transfers by—
‘‘(A) controlling the transfer of conventional
major military equipment;
‘‘(B) achieving transparency among arms suppliers nations through advanced notification of agreement to, or transfer of, conventional major military equipment; and
‘‘(C) developing and adopting common and comprehensive control guidelines on the sale and transfer of conventional major military equipment to
the region;
‘‘(2) to halt the proliferation of unconventional
weapons, including nuclear, biological, and chemical
weapons, as well as delivery systems associated with
those weapons and the technologies necessary to
produce or assemble such weapons;
‘‘(3) to limit and halt the proliferation of ballistic
missile technologies and ballistic missile systems
that are capable of delivering conventional, nuclear,
biological, or chemical warheads;
‘‘(4) to maintain the military balance in the Middle
East and Persian Gulf region through reductions of
conventional weapons and the elimination of unconventional weapons; and
‘‘(5) to promote regional arms control in the Middle
East and Persian Gulf region.
‘‘(c) ACHIEVING THE PURPOSES OF THE REGIME.—
‘‘(1) CONTROLLING PROLIFERATION OF CONVENTIONAL
WEAPONS.—In order to achieve the purposes described
in subsection (b)(1), the United States should pursue
the development of a multilateral arms transfer and
control regime which includes—
‘‘(A) greater information-sharing practices among
supplier nations regarding potential arms sales to
all nations of the Middle East and Persian Gulf region;
‘‘(B) applying, for the control of conventional
major military equipment, procedures already developed by the International Atomic Energy Agency, the Multilateral Coordinating Committee on
Export Controls (COCOM), and the Missile Technology Control Regime (MTCR); and
‘‘(C) other strict controls on the proliferation of
conventional major military equipment to the Middle East and Persian Gulf region.
‘‘(2) HALTING PROLIFERATION OF UNCONVENTIONAL
WEAPONS.—In order to achieve the purposes described
in subsections (b)(2) and (3), the United States should
build on existing and future agreements among supplier nations by pursuing the development of a multilateral arms transfer and control regime which includes—
‘‘(A) limitations and controls contained in the
Enhanced Proliferation Control Initiative;
‘‘(B) limitations and controls contained in the
Missile Technology Control Regime (MTCR);
‘‘(C) guidelines followed by the Australia Group
on chemical and biological arms proliferation;
‘‘(D) guidelines adopted by the Nuclear Suppliers
Group (the London Group); and
‘‘(E) other appropriate controls that serve to halt
the flow of unconditional [unconventional] weapons
to the Middle East and Persian Gulf region.
‘‘(3) PROMOTION OF REGIONAL ARMS CONTROL AGREEMENTS.—In order to achieve the purposes described in
subsections (b)(4) and (5), the United States should
pursue with nations in the Middle East and Persian
Gulf region—
‘‘(A) the maintenance of the military balance
within the region, while eliminating nuclear, bio-
§ 2778
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
logical, and chemical weapons and associated delivery systems, and ballistic missiles;
‘‘(B) the implementation of confidence-building
and security-building measures, including advance
notification of certain ground and aerial military
exercises in the Middle East and the Persian Gulf;
and
‘‘(C) other useful arms control measures.
‘‘(d) MAJOR MILITARY EQUIPMENT.—As used in this
title, the term ‘major military equipment’ means—
‘‘(1) air-to-air, air-to-surface, and surface-to-surface
missiles and rockets;
‘‘(2) turbine-powered military aircraft;
‘‘(3) attack helicopters;
‘‘(4) main battle tanks;
‘‘(5) submarines and major naval surface combatants;
‘‘(6) nuclear, biological, and chemical weapons; and
‘‘(7) such other defense articles and defense services
as the President may determine.
‘‘SEC. 403. LIMITATION ON UNITED STATES ARMS
SALES TO THE REGION.
‘‘Beginning 60 days after the date of enactment of the
International Cooperation Act of 1991 [probably means
H.R. 2508, which had not been enacted into law by the
end of the first session of the 102d Congress] or the Foreign Relations Authorization Act, Fiscal Years 1992 and
1993 [Oct. 28, 1991], whichever is enacted first, no sale of
any defense article or defense service may be made to
any nation in the Middle East and Persian Gulf region,
and no license may be issued for the export of any defense article or defense service to any nation in the
Middle East and Persian Gulf region, unless the President—
‘‘(1) certifies in writing to the relevant congressional committees that the President has undertaken
good faith efforts to convene a conference for the establishment of an arms suppliers regime having elements described in section 402; and
‘‘(2) submits to the relevant congressional committees a report setting forth a United States plan for
leading the world community in establishing such a
multilateral regime to restrict transfers of advanced
conventional and unconventional arms to the Middle
East and Persian Gulf region.
‘‘SEC. 404. REPORTS TO THE CONGRESS.
‘‘(a) QUARTERLY REPORTS.—Beginning on January 15,
1992, and quarterly thereafter through October 15, 1993,
the President shall submit to the relevant congressional committees a report—
‘‘(1) describing the progress in implementing the
purposes of the multilateral arms transfer and control regime as described in section 402(b); and
‘‘(2) describing efforts by the United States and
progress made to induce other countries to curtail
significantly the volume of their arms sales to the
Middle East and Persian Gulf region, and if such efforts were not made, the justification for not making
such efforts.
‘‘(b) INITIAL REPORT ON TRANSFERS AND REGIONAL
MILITARY BALANCE.—Not later than 60 days after the
date of enactment of the International Cooperation Act
of 1991 or the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993, whichever is enacted first, the
President shall submit to the relevant congressional
committee a report—
‘‘(1) documenting all transfers of conventional and
unconventional arms by any nation to the Middle
East and Persian Gulf region over the previous calendar year and the previous 5 calendar years, including sources, types, and recipient nations of weapons;
‘‘(2) analyzing the current military balance in the
region, including the effect on the balance of transfers documented under paragraph (1);
‘‘(3) describing the progress in implementing the
purposes of the multilateral arms transfer and control regime as described in section 402(b);
‘‘(4) describing any agreements establishing such a
regime; and
Page 1038
‘‘(5) identifying supplier nations that have refused
to participate in such a regime or that have engaged
in conduct that violates or undermines such a regime.
‘‘(c) ANNUAL REPORTS ON TRANSFERS AND REGIONAL
MILITARY BALANCE.—Beginning July 15, 1992, and every
12 months thereafter, the President shall submit to the
relevant congressional committees a report—
‘‘(1) documenting all transfers of conventional and
unconventional arms by any nation to the Middle
East and Persian Gulf region over the previous calendar year, including sources, types, and recipient
nations of weapons;
‘‘(2) analyzing the current military balance in the
region, including the effect on the balance of transfer
documented under paragraph (1);
‘‘(3) describing the progress in implementing the
purposes of the multilateral arms transfer and control regime as described in section 402(b); and
‘‘(4) identifying supplier nations that have refused
to participate in such a regime or that have engaged
in conduct that violates or undermines such a regime.
‘‘SEC. 405. RELEVANT CONGRESSIONAL COMMITTEES DEFINED.
‘‘As used in this title, the term ‘relevant congressional committees’ means the Committee on Foreign
Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate.’’
[Ex. Ord. No. 12851, § 3, June 11, 1993, 58 F.R. 33181, set
out as a note under section 2797 of this title, delegated
to Secretary of State, in consultation with Secretary of
Defense and other agencies, certification and reporting
functions of the President under sections 403 and 404 of
the Foreign Relations Authorization Act, Fiscal Years
1992 and 1993, Public Law 102–138, set out above.]
[Memorandum of President of the United States, Dec.
27, 1991, 56 F.R. 1069, delegated to Secretary of State, in
consultation with heads of other executive agencies
and departments, certification and reporting obligations of the President under sections 403 and 404 of the
Foreign Relations Authorization Act, Fiscal Years 1992
and 1993, Public Law 102–138, set out above.]
CONTINUATION OF EXPORT CONTROL REGULATIONS
Section 3 of Ex. Ord. No. 13222, Aug. 17, 2001, 66 F.R.
44025, listed in a table under section 1701 of Title 50,
War and National Defense, provided that: ‘‘Provisions
for administration of section 38(e) of the Arms Export
Control Act (22 U.S.C. 2778(e)) may be made and shall
continue in full force and effect until amended or revoked under the authority of section 203 of the Act (50
U.S.C. 1702). To the extent permitted by law, this order
also shall constitute authority for the issuance and
continuation in full force and effect of all rules and
regulations by the President or his delegate, and all orders, licenses, and other forms of administrative actions issued, taken, or continued in effect pursuant
thereto, relating to the administration of section
38(e).’’
Prior provisions relating to issuance and continued
effect of rules, regulations, orders, licenses, and other
forms of administrative action relating to administration of subsec. (e) of this section were contained in the
following:
Ex. Ord. No. 12924, § 3, Aug. 19, 1994, 59 F.R. 43437, listed in a table under section 1701 of Title 50, prior to revocation by Ex. Ord. No. 13206, § 1, Apr. 4, 2001, 66 F.R.
18397.
Ex. Ord. No. 12923, § 3, June 30, 1994, 59 F.R. 34551, listed in a table under section 1701 of Title 50, prior to revocation by Ex. Ord. No. 12924, § 4, Aug. 19, 1994, 59 F.R.
43438.
Ex. Ord. No. 12867, § 3, Sept. 30, 1993, 58 F.R. 51747, listed in a table under section 1701 of Title 50.
Ex. Ord. No. 12730, § 3, Sept. 30, 1990, 55 F.R. 40373, listed in a table under section 1701 of Title 50, prior to revocation by Ex. Ord. No. 12867, Sept. 30, 1993, 58 F.R.
51747.
Page 1039
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
Ex. Ord. No. 12525, § 3, July 12, 1985, 50 F.R. 28757, listed in a table under section 1701 of Title 50.
Ex. Ord. No. 12470, § 3, Mar. 30, 1984, 49 F.R. 13099, listed in a table under section 1701 of Title 50, prior to revocation by Ex. Ord. No. 12525, July 12, 1985, 50 F.R.
28757.
Ex. Ord. No. 12451, § 3, Dec. 20, 1983, 48 F.R. 56563, listed in a table under section 1701 of Title 50.
Ex. Ord. No. 12444, § 3, Oct. 14, 1983, 48 F.R. 48215, listed
in a table under section 1701 of Title 50, prior to revocation by Ex. Ord. No. 12451, Dec. 20, 1983, 48 F.R. 56563.
§ 2778a. Exportation of uranium depleted in the
isotope 235
Upon a finding that an export of uranium depleted in the isotope 235 is incorporated in defense articles or commodities solely to take advantage of high density or pyrophoric characteristics unrelated to its radioactivity, such exports shall be exempt from the provisions of the
Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.]
and of the Nuclear Non-Proliferation Act of 1978
[22 U.S.C. 3201 et seq.] when such exports are
subject to the controls established under the
Arms Export Control Act [22 U.S.C. 2751 et seq.]
or the Export Administration Act of 1979 [50
U.S.C. App. 2401 et seq.].
(Pub. L. 96–533, title I, § 110, Dec. 16, 1980, 94 Stat.
3138.)
REFERENCES IN TEXT
The Atomic Energy Act of 1954, referred to in text, is
act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954,
ch. 1073, § 1, 68 Stat. 921, and amended, which is classified generally to chapter 23 (§ 2011 et seq.) of Title 42,
The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note
set out under section 2011 of Title 42 and Tables.
The Nuclear Non-Proliferation Act of 1978, referred to
in text, is Pub. L. 95–242, Mar. 10, 1978, 92 Stat. 120, as
amended, which is classified principally to chapter 47
(§ 3201 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 3201 of this title and Tables.
The Arms Export Control Act, referred to in text, is
Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, as amended,
which is classified principally to this chapter (§ 2751 et
seq.). For complete classification of this Act to the
Code, see Short Title note set out under section 2751 of
this title and Tables.
The Export Administration Act of 1979, referred to in
text, is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, as
amended, which is classified principally to sections 2401
et seq. of Title 50, Appendix, War and National Defense.
For complete classification of this Act to the Code, see
Short Title note set out under section 2401 of Title 50,
Appendix, and Tables.
CODIFICATION
Section was enacted as part of the International Security and Development Cooperation Act of 1980, and
not as part of the Arms Export Control Act which comprises this chapter.
§ 2779. Fees of military sales agents
(a) Adequate and timely reports to Secretary of
State; maintenance of records
In accordance with such regulations as he may
prescribe, the Secretary of State shall require
adequate and timely reporting on political contributions, gifts, commissions and fees paid, or
offered or agreed to be paid, by any person in
connection with—
(1) sales of defense articles or defense services under section 2762 of this title, or of de-
§ 2779
sign and construction services under section
2769 of this title;
(2) commercial sales of defense articles or
defense services licensed or approved under
section 2778 of this title; or
(3) exports of defense articles or defense
services pursuant to a treaty referenced in
section 2778(j)(1)(C)(i) of this title;
to or for the armed forces of a foreign country
or international organization in order to solicit,
promote, or otherwise to secure the conclusion
of such sales. Such regulations shall specify the
amounts and the kinds of payments, offers, and
agreements to be reported, and the form and
timing of reports, and shall require reports on
the names of sales agents and other persons receiving such payments. The Secretary of State
shall by regulation require such recordkeeping
as he determines is necessary.
(b) Presidential regulation
The President may, by regulation, prohibit,
limit, or prescribe conditions with respect to
such contributions, gifts, commissions, and fees
as he determines will be in furtherance of the
purposes of this chapter.
(c) Allocation to contract; improper influence
No such contribution, gift, commission, or fee
may be included, in whole or in part, in the
amount paid under any procurement contract
entered into under section 2762 or section 2769 of
this title, unless the amount thereof is reasonable, allocable to such contract, and not made
to a person who has solicited, promoted, or
otherwise secured such sale, or has held himself
out as being able to do so, through improper influence. For the purposes of this section, ‘‘improper influence’’ means influence, direct or indirect, which induces or attempts to induce consideration or action by any employee or officer
of a purchasing foreign government or international organization with respect to such purchase on any basis other than such consideration of merit as are involved in comparable
United States procurements.
(d) Availability of records to Congress and Federal agencies
(1) All information reported to the Secretary
of State and all records maintained by any person pursuant to regulations prescribed under
this section shall be available, upon request, to
any standing committee of the Congress or any
subcommittee thereof and to any agency of the
United States Government authorized by law to
have access to the books and records of the person required to submit reports or to maintain
records under this section.
(2) Access by an agency of the United States
Government to records maintained under this
section shall be on the same terms and conditions which govern the access by such agency to
the books and records of the person concerned.
(Pub. L. 90–629, ch. 3, § 39, as added Pub. L. 94–329,
title VI, § 604(b), June 30, 1976, 90 Stat. 767;
amended Pub. L. 96–533, title I, § 105(e)(2), Dec.
16, 1980, 94 Stat. 3135; Pub. L. 111–266, title I,
§ 104(e), Oct. 8, 2010, 124 Stat. 2800.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (b), was in the
original ‘‘this Act’’, meaning Pub. L. 90–629, Oct. 22,
§ 2779a
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
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.
AMENDMENTS
2010—Subsec. (a)(3). Pub. L. 111–266, which directed
amendment of subsec. (a) by adding par. (3) at the end,
was executed by adding par. (3) after par. (2) to reflect
the probable intent of Congress.
1980—Subsec. (a)(1). Pub. L. 96–533, § 105(e)(2)(A), inserted reference to sales of design and construction
services under section 2769 of this title.
Subsec. (c). Pub. L. 96–533, § 105(e)(2)(B), inserted reference to section 2769 of this title.
EFFECTIVE DATE
Section effective 60 days after June 30, 1976, see section 604(c) of Pub. L. 94–329, set out as note under section 2776 of this title.
DELEGATION OF FUNCTIONS
Functions of President under subsec. (b) of this section delegated to Secretary of State, with Secretary of
State required to consult with Secretary of Defense to
avoid interference in application of Department of Defense regulations to sales made under section 2762 of
this title, by section 1(m) of Ex. Ord. No. 11958, Jan. 18,
1977, 42 F.R. 4311, as amended, set out as a note under
section 2751 of this title.
§ 2779a. Prohibition on incentive payments
(a) In general
No United States supplier of defense articles
or services sold or licensed under this chapter or
exported pursuant to a treaty referred to in section 2778(j)(1)(C)(i) of this title, nor any employee, agent, or subcontractor thereof, shall,
with respect to the sale or export of any such defense article or defense service to a foreign
country, make any incentive payments for the
purpose of satisfying, in whole or in part, any
offset agreement with that country.
(b) Civil penalties
Any person who violates the provisions of this
section shall be subject to the imposition of
civil penalties as provided for in this section.
(c) Presidential authority
In the enforcement of this section, the President is authorized to exercise the same powers
concerning violations and enforcement and imposition of civil penalties which are conferred
upon departments, agencies and officials by subsections (c), (d), (e), and (f) of section 11 of the
Export Administration Act of 1979 [50 U.S.C.
App. 2410(c), (d), (e), (f)], and section 12(a) of
such Act [50 U.S.C. App. 2411(a)], subject to the
same terms and conditions as are applicable to
such powers under that Act [50 U.S.C. App. 2401
et seq.], except that section 11(c)(2)(B) of such
Act shall not apply, and instead, as prescribed in
regulations issued under this section, the Secretary of State may assess civil penalties for
violations of this chapter and regulations prescribed thereunder and further may commence a
civil action to recover such civil penalties, and
except further that notwithstanding section
11(c) of that Act, the civil penalty for each violation of this section may not exceed $500,000 or
five times the amount of the prohibited incentive payment, whichever is greater.
(d) Definitions
For purposes of this section—
Page 1040
(1) the term ‘‘offset agreement’’ means an
agreement, arrangement, or understanding between a United States supplier of defense articles or defense services and a foreign country
under which the supplier agrees to purchase or
acquire, or to promote the purchase or acquisition by other United States persons of, goods
or services produced, manufactured, grown, or
extracted, in whole or in part, in that foreign
country in consideration for the purchase by
the foreign country of defense articles or defense services from the supplier;
(2) the term ‘‘incentive payments’’ means direct monetary compensation made by a United
States supplier of defense articles or defense
services or by any employee, agent or subcontractor thereof to any other United States
person to induce or persuade that United
States person to purchase or acquire goods or
services produced, manufactured, grown, or
extracted, in whole or in part, in the foreign
country which is purchasing those defense articles or services from the United States supplier; and
(3) the term ‘‘United States person’’ means—
(A) an individual who is a national or permanent resident alien of the United States;
and
(B) any corporation, business association,
partnership, trust, or other juridical entity—
(i) organized under the laws of the
United States or any State, the District of
Columbia, or any territory or possession of
the United States; or
(ii) owned or controlled in fact by individuals described in subparagraph (A) or
by an entity described in clause (i).
(Pub. L. 90–629, ch. 3, § 39A, as added Pub. L.
103–236, title VII, § 733, Apr. 30, 1994, 108 Stat. 504;
amended Pub. L. 106–113, div. B, § 1000(a)(7) [div.
B, title XII, § 1246, title XIII, § 1303], Nov. 29, 1999,
113 Stat. 1536, 1501A–502, 1501A–511; Pub. L.
111–266, title I, § 103(d), Oct. 8, 2010, 124 Stat.
2799.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a) and (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.
The Export Administration Act of 1979, referred to in
subsec. (c), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503,
as amended, which is classified principally to section
2401 et seq. of Title 50, Appendix, War and National Defense. For complete classification of this Act to the
Code, see Short Title note set out under section 2401 of
Title 50, Appendix, and Tables.
AMENDMENTS
2010—Subsec. (a). Pub. L. 111–266 inserted ‘‘or exported pursuant to a treaty referred to in section
2778(j)(1)(C)(i) of this title’’ after ‘‘under this chapter’’.
1999—Subsec. (a). Pub. L. 106–113, § 1000(a)(7) [title XII,
§ 1246(a)], inserted ‘‘or licensed’’ after ‘‘sold’’ and ‘‘or
export’’ after ‘‘sale’’.
Subsec. (c). Pub. L. 106–113, § 1000(a)(7) [title XIII,
§ 1303], inserted ‘‘section 11(c)(2)(B) of such Act shall
not apply, and instead, as prescribed in regulations issued under this section, the Secretary of State may assess civil penalties for violations of this chapter and
Page 1041
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
regulations prescribed thereunder and further may
commence a civil action to recover such civil penalties,
and except further that’’ after ‘‘except that’’.
Subsec. (d)(3)(B)(ii). Pub. L. 106–113, § 1000(a)(7) [title
XII, § 1246(b)], inserted ‘‘or by an entity described in
clause (i)’’ after ‘‘subparagraph (A)’’.
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of State by Memorandum of President of
the United States, July 26, 1994, 59 F.R. 40205, set out as
a note under section 2370a of this title.
§ 2780. Transactions with countries supporting
acts of international terrorism
(a) Prohibited transactions by United States
Government
The following transactions by the United
States Government are prohibited:
(1) Exporting or otherwise providing (by
sale, lease or loan, grant, or other means), directly or indirectly, any munitions item to a
country described in subsection (d) of this section under the authority of this chapter, the
Foreign Assistance Act of 1961 [22 U.S.C. 2151
et seq.], or any other law (except as provided
in subsection (h) of this section). In implementing this paragraph, the United States
Government—
(A) shall suspend delivery to such country
of any such item pursuant to any such transaction which has not been completed at the
time the Secretary of State makes the determination described in subsection (d) of
this section, and
(B) shall terminate any lease or loan to
such country of any such item which is in effect at the time the Secretary of State
makes that determination.
(2) Providing credits, guarantees, or other financial assistance under the authority of this
chapter, the Foreign Assistance Act of 1961 [22
U.S.C. 2151 et seq.], or any other law (except as
provided in subsection (h) of this section),
with respect to the acquisition of any munitions item by a country described in subsection (d) of this section. In implementing
this paragraph, the United States Government
shall suspend expenditures pursuant to any
such assistance obligated before the Secretary
of State makes the determination described in
subsection (d) of this section. The President
may authorize expenditures otherwise required to be suspended pursuant to the preceding sentence if the President has determined,
and reported to the Congress, that suspension
of those expenditures causes undue financial
hardship to a supplier, shipper, or similar person and allowing the expenditure will not result in any munitions item being made available for use by such country.
(3) Consenting under section 2753(a) of this
title, under section 505(a) of the Foreign Assistance Act of 1961 [22 U.S.C. 2314(a)], under
the regulations issued to carry out section 2778
of this title, or under any other law (except as
provided in subsection (h) of this section), to
any transfer of any munitions item to a country described in subsection (d) of this section.
In implementing this paragraph, the United
States Government shall withdraw any such
§ 2780
consent which is in effect at the time the Secretary of State makes the determination described in subsection (d) of this section, except
that this sentence does not apply with respect
to any item that has already been transferred
to such country.
(4) Providing any license or other approval
under section 2778 of this title for any export
or other transfer (including by means of a
technical assistance agreement, manufacturing licensing agreement, or coproduction
agreement) of any munitions item to a country described in subsection (d) of this section.
In implementing this paragraph, the United
States Government shall suspend any such license or other approval which is in effect at
the time the Secretary of State makes the determination described in subsection (d) of this
section, except that this sentence does not
apply with respect to any item that has already been exported or otherwise transferred
to such country.
(5) Otherwise facilitating the acquisition of
any munitions item by a country described in
subsection (d) of this section. This paragraph
applies with respect to activities undertaken—
(A) by any department, agency, or other
instrumentality of the Government,
(B) by any officer or employee of the Government (including members of the United
States Armed Forces), or
(C) by any other person at the request or
on behalf of the Government.
The Secretary of State may waive the requirements of the second sentence of paragraph (1),
the second sentence of paragraph (3), and the
second sentence of paragraph (4) to the extent
that the Secretary determines, after consultation with the Congress, that unusual and compelling circumstances require that the United
States Government not take the actions specified in that sentence.
(b) Prohibited transactions by United States persons
(1) In general
A United States person may not take any of
the following actions:
(A) Exporting any munitions item to any
country described in subsection (d) of this
section.
(B) Selling, leasing, loaning, granting, or
otherwise providing any munitions item to
any country described in subsection (d) of
this section.
(C) Selling, leasing, loaning, granting, or
otherwise providing any munitions item to
any recipient which is not the government of
or a person in a country described in subsection (d) of this section if the United
States person has reason to know that the
munitions item will be made available to
any country described in subsection (d) of
this section.
(D) Taking any other action which would
facilitate the acquisition, directly or indirectly, of any munitions item by the government of any country described in subsection
(d) of this section, or any person acting on
behalf of that government, if the United
States person has reason to know that that
§ 2780
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
action will facilitate the acquisition of that
item by such a government or person.
(2) Liability for actions of foreign subsidiaries,
etc.
A United States person violates this subsection if a corporation or other person that is
controlled in fact by that United States person
(as determined under regulations, which the
President shall issue) takes an action described in paragraph (1) outside the United
States.
(3) Applicability to actions outside the United
States
Paragraph (1) applies with respect to actions
described in that paragraph which are taken
either within or outside the United States by
a United States person described in subsection
(l)(3)(A) or (B) of this section. To the extent
provided in regulations issued under subsection (l)(3)(D) of this section, paragraph (1)
applies with respect to actions described in
that paragraph which are taken outside the
United States by a person designated as a
United States person in those regulations.
(c) Transfers to governments and persons covered
This section applies with respect to—
(1) the acquisition of munitions items by the
government of a country described in subsection (d) of this section; and
(2) the acquisition of munitions items by
any individual, group, or other person within a
country described in subsection (d) of this section, except to the extent that subparagraph
(D) of subsection (b)(1) of this section provides
otherwise.
(d) Countries covered by prohibition
The prohibitions contained in this section
apply with respect to a country if the Secretary
of State determines that the government of that
country has repeatedly provided support for acts
of international terrorism. For purposes of this
subsection, such acts shall include all activities
that the Secretary determines willfully aid or
abet the international proliferation of nuclear
explosive devices to individuals or groups, willfully aid or abet an individual or groups in acquiring unsafeguarded special nuclear material,
or willfully aid or abet the efforts of an individual or group to use, develop, produce, stockpile,
or otherwise acquire chemical, biological, or radiological weapons.
(e) Publication of determinations
Each determination of the Secretary of State
under subsection (d) of this section shall be published in the Federal Register.
(f) Rescission
(1) A determination made by the Secretary of
State under subsection (d) of this section may
not be rescinded unless the President submits to
the Speaker of the House of Representatives and
the chairman of the Committee on Foreign Relations of the Senate—
(A) before the proposed rescission would
take effect, a report certifying that—
(i) there has been a fundamental change in
the leadership and policies of the government of the country concerned;
Page 1042
(ii) that government is not supporting acts
of international terrorism; and
(iii) that government has provided assurances that it will not support acts of international terrorism in the future; or
(B) at least 45 days before the proposed rescission would take effect, a report justifying
the rescission and certifying that—
(i) the government concerned has not provided any support for international terrorism during the preceding 6-month period;
and
(ii) the government concerned has provided assurances that it will not support
acts of international terrorism in the future.
(2)(A) No rescission under paragraph (1)(B) of a
determination under subsection (d) of this section may be made if the Congress, within 45 days
after receipt of a report under paragraph (1)(B),
enacts a joint resolution the matter after the resolving clause of which is as follows: ‘‘That the
proposed rescission of the determination under
section 40(d) of the Arms Export Control Act
pursuant to the report submitted to the Congress on lllllllll is hereby prohibited.’’, the blank to be completed with the appropriate date.
(B) A joint resolution described in subparagraph (A) and introduced within the appropriate
45-day period shall be considered in the Senate
and the House of Representatives in accordance
with paragraphs (3) through (7) of section 8066(c)
of the Department of Defense Appropriations
Act (as contained in Public Law 98–473), except
that references in such paragraphs to the Committees on Appropriations of the House of Representatives and the Senate shall be deemed to
be references to the Committee on Foreign Affairs of the House of Representatives and the
Committee on Foreign Relations of the Senate,
respectively.
(g) Waiver
The President may waive the prohibitions contained in this section with respect to a specific
transaction if—
(1) the President determines that the transaction is essential to the national security interests of the United States; and
(2) not less than 15 days prior to the proposed transaction, the President—
(A) consults with the Committee on Foreign Affairs of the House of Representatives
and the Committee on Foreign Relations of
the Senate; and
(B) submits to the Speaker of the House of
Representatives and the chairman of the
Committee on Foreign Relations of the Senate a report containing—
(i) the name of any country involved in
the proposed transaction, the identity of
any recipient of the items to be provided
pursuant to the proposed transaction, and
the anticipated use of those items;
(ii) a description of the munitions items
involved in the proposed transaction (including their market value) and the actual
sale price at each step in the transaction
(or if the items are transferred by other
than sale, the manner in which they will
be provided);
Page 1043
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(iii) the reasons why the proposed transaction is essential to the national security
interests of the United States and the justification for such proposed transaction;
(iv) the date on which the proposed
transaction is expected to occur; and
(v) the name of every United States Government department, agency, or other entity involved in the proposed transaction,
every foreign government involved in the
proposed transaction, and every private
party with significant participation in the
proposed transaction.
To the extent possible, the information specified
in subparagraph (B) of paragraph (2) shall be
provided in unclassified form, with any classified information provided in an addendum to the
report.
(h) Exemption for transactions subject to National Security Act reporting requirements
The prohibitions contained in this section do
not apply with respect to any transaction subject to reporting requirements under title V of
the National Security Act of 1947 (50 U.S.C. 413
et seq.; relating to congressional oversight of intelligence activities).
(i) Relation to other laws
(1) In general
With regard to munitions items controlled
pursuant to this chapter, the provisions of this
section shall apply notwithstanding any other
provision of law, other than section 614(a) of
the Foreign Assistance Act of 1961 (22 U.S.C.
2364(a)).
(2) Section 614(a) waiver authority
If the authority of section 614(a) of the Foreign Assistance Act of 1961 [22 U.S.C. 2364(a)] is
used to permit a transaction under that Act
[22 U.S.C. 2151 et seq.] or this chapter which is
otherwise prohibited by this section, the written policy justification required by that section shall include the information specified in
subsection (g)(2)(B) of this section.
(j) Criminal penalty
Any person who willfully violates this section
shall be fined for each violation not more than
$1,000,000, imprisoned not more than 20 years, or
both.
(k) Civil penalties; enforcement
In the enforcement of this section, the President is authorized to exercise the same powers
concerning violations and enforcement which
are conferred upon departments, agencies, and
officials by sections 11(c), 11(e), 11(g), and 12(a)
of the Export Administration Act of 1979 [50
U.S.C. App. 2410(c), (e), (g), 2411(a)] (subject to
the same terms and conditions as are applicable
to such powers under that Act [50 U.S.C. App.
2401 et seq.]), except that section 11(c)(2)(B) of
such Act shall not apply, and instead, as prescribed in regulations issued under this section,
the Secretary of State may assess civil penalties
for violations of this chapter and regulations
prescribed thereunder and further may commence a civil action to recover such civil penalties, and except further that, notwithstanding
section 11(c) of that Act, the civil penalty for
§ 2780
each violation of this section may not exceed
$500,000.
(l) Definitions
As used in this section—
(1) the term ‘‘munitions item’’ means any
item enumerated on the United States Munitions list 1 (without regard to whether the
item is imported into or exported from the
United States);
(2) the term ‘‘United States’’, when used geographically, means the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, and any territory or possession of the United States;
(3) the term ‘‘United States person’’ means—
(A) any citizen or permanent resident
alien of the United States;
(B) any sole proprietorship, partnership,
company, association, or corporation having
its principal place of business within the
United States or organized under the laws of
the United States, any State, the District of
Columbia, the Commonwealth of Puerto
Rico, the Commonwealth of the Northern
Mariana Islands, or any territory or possession of the United States;
(C) any other person with respect to that
person’s actions while in the United States;
and
(D) to the extent provided in regulations
issued by the Secretary of State, any person
that is not described in subparagraph (A),
(B), or (C) but—
(i) is a foreign subsidiary or affiliate of a
United States person described in subparagraph (B) and is controlled in fact by that
United States person (as determined in accordance with those regulations), or
(ii) is otherwise subject to the jurisdiction of the United States,
with respect to that person’s actions while
outside the United States;
(4) the term ‘‘nuclear explosive device’’ has
the meaning given that term in section 6305(4)
of this title; and
(5) the term ‘‘unsafeguarded special nuclear
material’’ has the meaning given that term in
section 6305(8) of this title.
(Pub. L. 90–629, ch. 3, § 40, as added Pub. L. 99–399,
title V, § 509(a), Aug. 27, 1986, 100 Stat. 874;
amended Pub. L. 101–222, § 2(a), Dec. 12, 1989, 103
Stat. 1892; Pub. L. 102–138, title III, § 321, Oct. 28,
1991, 105 Stat. 710; Pub. L. 103–236, title VIII,
§ 822(a)(2), Apr. 30, 1994, 108 Stat. 511; Pub. L.
106–113, div. B, § 1000(a)(7) [div. B, title XIII,
§ 1303], Nov. 29, 1999, 113 Stat. 1536, 1501A–511;
Pub. L. 107–228, div. B, title XII, § 1204, Sept. 30,
2002, 116 Stat. 1427; Pub. L. 111–195, title I,
§ 107(a)(3), July 1, 2010, 124 Stat. 1337.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a)(1), (2), (i)(1),
and (k), was in the original ‘‘this Act’’, and this chapter, referred to in subsec. (i)(2), was in the original ‘‘the
Arms Export Control Act’’, both of which mean Pub. L.
90–629, Oct. 22, 1968, 82 Stat. 1321, as amended, which is
1 So
in original. Probably should be capitalized.
§ 2781
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
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.
The Foreign Assistance Act of 1961, referred to in subsecs. (a)(1), (2) and (i)(2), is Pub. L. 87–195, Sept. 4, 1961,
75 Stat. 424, as amended, which is classified principally
to chapter 32 (§ 2151 et seq.) 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.
Section 40(d) of the Arms Export Control Act, referred to in subsec. (f)(2)(A), is classified to subsec. (d)
of this section.
Paragraphs (3) through (7) of section 8066(c) of the Department of Defense Appropriations Act (as contained
in Public Law 98–473), referred to in subsec. (f)(2)(B), is
Pub. L. 98–473, title I, § 101(h) [title VIII, § 8066(c)(3)–(7)],
Oct. 12, 1984, 98 Stat. 1904, 1936, 1937, which is not classified to the Code.
The National Security Act of 1947, referred to in subsec. (h), is act July 26, 1947, ch. 343, 61 Stat. 495, as
amended. Title V of the National Security Act of 1947
is classified generally to subchapter III (§ 413 et seq.) of
chapter 15 of Title 50, War and National Defense. For
complete classification of this Act to the Code, see
Short Title note set out under section 401 of Title 50.
The Export Administration Act of 1979, referred to in
subsec. (k), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503,
as amended, which is classified principally to section
2401 et seq. of the Appendix to Title 50. For complete
classification of this Act to the Code, see Short Title
note set out under section 2401 of the Appendix to Title
50 and Tables.
AMENDMENTS
2010—Subsec. (j). Pub. L. 111–195 substituted ‘‘20
years’’ for ‘‘10 years’’.
2002—Subsec. (d). Pub. L. 107–228 substituted
‘‘groups,’’ for ‘‘groups or’’ in second sentence and inserted before period at end ‘‘, or willfully aid or abet
the efforts of an individual or group to use, develop,
produce, stockpile, or otherwise acquire chemical, biological, or radiological weapons’’.
1999—Subsec. (k). Pub. L. 106–113 inserted ‘‘section
11(c)(2)(B) of such Act shall not apply, and instead, as
prescribed in regulations issued under this section, the
Secretary of State may assess civil penalties for violations of this chapter and regulations prescribed thereunder and further may commence a civil action to recover such civil penalties, and except further that’’
after ‘‘except that’’.
1994—Subsec. (d). Pub. L. 103–236, § 822(a)(2)(A), inserted at end ‘‘For purposes of this subsection, such
acts shall include all activities that the Secretary 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.’’
Subsec. (l). Pub. L. 103–236, § 822(a)(2)(B), amended
subsec. (l) by striking ‘‘and’’ after the semicolon in par.
(2), substituting a semicolon for the period at the end
of par. (3), and adding pars. (4) and (5).
1991—Subsec. (f). Pub. L. 102–138, § 321, designated existing provisions as par. (1), redesignated former par. (1)
as subpar. (A) and former subpars. (A) to (C) as cls. (i)
to (iii), respectively, redesignated former par. (2) as
subpar. (B) and former subpars. (A) and (B) as cls. (i)
and (ii), respectively, and added par. (2). So much of
Pub. L. 102–138, § 321(1), as directed that subpar. (C) of
former par. (2) be redesignated cl. (iii) of par. (1)(B),
could not be executed because no such subpar. (C) had
been enacted.
1989—Pub. L. 101–222 substituted ‘‘Transactions with’’
for ‘‘Exports to’’ in section catchline and amended text
generally. Prior to amendment, text read as follows:
‘‘(a) PROHIBITION.—Except as provided in subsection
(b) of this section, items on the United States Munitions List may not be exported to any country which
the Secretary of State has determined, for purposes of
section 6(j)(1)(A) of the Export Administration Act of
1979 (50 U.S.C. App. 2405(j)(1)(A)), has repeatedly provided support for acts of international terrorism.
Page 1044
‘‘(b) WAIVER.—The President may waive the prohibition contained in subsection (a) of this section in the
case of a particular export if the President determines
that the export is important to the national interests
of the United States and submits to the Congress a report justifying that determination and describing the
proposed export. Any such waiver shall expire at the
end of 90 days after it is granted unless the Congress
enacts a law extending the waiver.’’
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103–236 effective 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.
§ 2781. Transactions with countries not fully cooperating with United States antiterrorism
efforts
(a) Prohibited transactions
No defense article or defense service may be
sold or licensed for export under this chapter in
a fiscal year to a foreign country that the President determines and certifies to Congress, by
May 15 of the calendar year in which that fiscal
year begins, is not cooperating fully with United
States antiterrorism efforts.
(b) Waiver
The President may waive the prohibition set
forth in subsection (a) of this section with respect to a specific transaction if the President
determines that the transaction is important to
the national interests of the United States.
(Pub. L. 90–629, ch. 3, § 40A, as added Pub. L.
104–132, title III, § 330, Apr. 24, 1996, 110 Stat.
1258.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (a), 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.
CODIFICATION
Another section 40A of Pub. L. 90–629 is classified to
section 2785 of this title.
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of State by section 1(o) of Ex. Ord. No.
11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as
a note under section 2751 of this title.
SUBCHAPTER III–A—END-USE MONITORING
OF DEFENSE ARTICLES AND DEFENSE
SERVICES
§ 2785. End-use monitoring of defense articles
and defense services
(a) Establishment of monitoring program
(1) In general
In order to improve accountability with respect to defense articles and defense services
sold, leased, or exported under this chapter or
the Foreign Assistance Act of 1961 (22 U.S.C.
2151 et seq.), the President shall establish a
program which provides for the end-use monitoring of such articles and services.
(2) Requirements of program
To the extent practicable, such program—
Page 1045
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(A) shall provide for the end-use monitoring of defense articles and defense services
in accordance with the standards that apply
for identifying high-risk exports for regular
end-use verification developed under section
2778(g)(7) of this title (commonly referred to
as the ‘‘Blue Lantern’’ program); and
(B) shall be designed to provide reasonable
assurance that—
(i) the recipient is complying with the
requirements imposed by the United
States Government with respect to use,
transfers, and security of defense articles
and defense services; and
(ii) such articles and services are being
used for the purposes for which they are
provided.
(b) Conduct of program
In carrying out the program established under
subsection (a) of this section, the President
shall ensure that the program—
(1) provides for the end-use verification of
defense articles and defense services that incorporate sensitive technology, defense articles and defense services that are particularly
vulnerable to diversion or other misuse, or defense articles or defense services whose diversion or other misuse could have significant
consequences; and
(2) prevents the diversion (through reverse
engineering or other means) of technology incorporated in defense articles.
(c) Report to Congress
Not later than 6 months after July 21, 1996,
and annually thereafter as a part of the annual
congressional presentation documents submitted under section 634 of the Foreign Assistance
Act of 1961 [22 U.S.C. 2394], the President shall
transmit to the Congress a report describing the
actions taken to implement this section, including a detailed accounting of the costs and number of personnel associated with the monitoring
program and the numbers, range, and findings of
end-use monitoring of United States transfers of
small arms and light weapons.
(d) Third country transfers
For purposes of this section, defense articles
and defense services sold, leased, or exported
under this chapter or the Foreign Assistance
Act of 1961 (22 U.S.C. 2151 et seq.) includes defense articles and defense services that are
transferred to a third country or other third
party.
(Pub. L. 90–629, ch. 3A, § 40A, as added Pub. L.
104–164, title I, § 150(a), July 21, 1996, 110 Stat.
1436; amended Pub. L. 107–228, div. B, title XII,
§ 1205(b), Sept. 30, 2002, 116 Stat. 1428.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a)(1) and (d), 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.
The Foreign Assistance Act of 1961, referred to in subsecs. (a)(1) and (d), is Pub. L. 87–195, Sept. 4, 1961, 75
Stat. 424, as amended, which is classified principally to
chapter 32 (§ 2151 et seq.) 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.
§ 2791
CODIFICATION
Another section 40A of Pub. L. 90–629 is classified to
section 2781 of this title.
AMENDMENTS
2002—Subsec. (c). Pub. L. 107–228 inserted ‘‘and the
numbers, range, and findings of end-use monitoring of
United States transfers of small arms and light weapons’’ before period at end.
EFFECTIVE DATE
Section 150(b) of Pub. L. 104–164 provided that: ‘‘Section 40A of the Arms Export Control Act, as added by
subsection (a) [22 U.S.C. 2785], applies with respect to
defense articles and defense services provided before or
after the date of the enactment of this Act [July 21,
1996].’’
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of State insofar as they relate to commercial exports licensed under this chapter, and to Secretary of Defense insofar as they relate to defense articles and defense services sold, leased, or transferred
under the Foreign Military Sales Program, by section
1(n) of Ex. Ord. No. 11958, Jan. 18, 1977, 42 F.R. 4311, as
amended, set out as a note under section 2751 of this
title.
SUBCHAPTER IV—GENERAL, ADMINISTRATIVE, AND MISCELLANEOUS PROVISIONS
§ 2791. General provisions
(a)
Considerations in procurement outside
United States
In carrying out this chapter, special emphasis
shall be placed on procurement in the United
States, but, subject to the provisions of subsection (b) of this section, consideration shall
also be given to coproduction or licensed production outside the United States of defense articles of United States origin when such production best serves the foreign policy, national security, and economy of the United States. In
evaluating any sale proposed to be made pursuant to this chapter, there shall be taken into
consideration (A) the extent to which the proposed sale damages or infringes upon licensing
arrangements whereby United States entities
have granted licenses for the manufacture of the
defense articles selected by the purchasing country to entities located in friendly foreign countries, which licenses result in financial returns
to the United States, (B) the portion of the defense articles so manufactured which is of
United States origin, and (C) whether, and the
extent to which, such sale might contribute to
an arms race, aid in the development of weapons
of mass destruction, support international terrorism, increase the possibility of outbreak or
escalation of conflict, or prejudice the development of bilateral or multilateral arms control
or nonproliferation agreements or other arrangements.
(b) Information to Congress on credit sales and
guaranties
No credit sale shall be extended under section
2763 of this title, and no guarantee shall be issued under section 2764 of this title, in any case
involving coproduction or licensed, production
outside the United States of any defense article
of United States origin unless the Secretary of
§ 2791
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
State shall, in advance of any such transaction,
advise the appropriate committees of the Congress and furnish the Speaker of the House of
Representatives and the President of the Senate
with full information regarding the proposed
transaction, including, but not limited to, a description of the particular defense article or articles which would be produced under a license
or coproduced outside the United States, the estimated value of such production or coproduction, and the probable impact of the proposed
transaction on employment and production
within the United States.
(c) Availability of funds for procurement outside
United States
Funds made available under this chapter may
be used for procurement outside the United
States only if the President determines that
such procurement will not result in adverse effects upon the economy of the United States or
the industrial mobilization base, with special
reference to any areas of labor surplus or to the
net position of the United States in its balance
of payments with the rest of the world, which
outweigh the economic or other advantages to
the United States of less costly procurement
outside the United States.
(d) Responsibility of Secretary of Defense with
respect to sales and guaranties
(1) With respect to sales and guaranties under
sections 2761, 2762, 2763, 2764, 2769 and 2770 of this
title, the Secretary of Defense shall, under the
direction of the President, have primary responsibility for—
(A) the determination of military end-item
requirements;
(B) the procurement of military equipment
in a manner which permits its integration
with service programs;
(C) the supervision of the training of foreign
military personnel;
(D) the movement and delivery of military
end-items; and
(E) within the Department of Defense, the
performance of any other functions with respect to sales and guaranties.
(2) The establishment of priorities in the procurement, delivery, and allocation of military
equipment shall, under the direction of the
President, be determined by the Secretary of
Defense.
(e) Revocation and suspension provisions of contracts for sale and export licenses; appropriations for refunds
(1) Each contract for sale entered into under
sections 2761, 2762, 2769 and 2770 of this title, and
each contract entered into under section 2767(d)
of this title, shall provide that such contract
may be canceled in whole or in part, or its execution suspended, by the United States at any
time under unusual or compelling circumstances
if the national interest so requires.
(2)(A) Each export license issued under section
2778 of this title shall provide that such license
may be revoked, suspended, or amended by the
Secretary of State, without prior notice, whenever the Secretary deems such action to be advisable.
Page 1046
(B) Nothing in this paragraph may be construed as limiting the regulatory authority of
the President under this chapter.
(3) There are authorized to be appropriated
from time to time such sums as may be necessary (A) to refund moneys received from purchasers under contracts of sale entered into
under sections 2761, 2762, 2769 and 2770 of this
title, or under contracts entered into under section 2767(d) of this title, that are canceled or
suspended under this subsection to the extent
such moneys have previously been disbursed to
private contractors and United States Government agencies for work in progress, and (B) to
pay such damages and costs that accrue from
the corresponding cancellation or suspension of
the existing procurement contracts or United
States Government agency work orders involved.
(f) Use of civilian contract personnel in foreign
countries
The President shall, to the maximum extent
possible and consistent with the purposes of this
chapter, use civilian contract personnel in any
foreign country to perform defense services sold
under this chapter.
(Pub. L. 90–629, ch. 4, § 42, Oct. 22, 1968, 82 Stat.
1326; Pub. L. 92–226, pt. IV, § 401(e), (f), Feb. 7,
1972, 86 Stat. 33; Pub. L. 94–141, title I, § 150(b),
Nov. 29, 1975, 89 Stat. 760; Pub. L. 94–329, title II,
§ 213, title VI, § 605(b), June 30, 1976, 90 Stat. 745,
768; Pub. L. 96–533, title I, § 105(e)(3), Dec. 16, 1980,
94 Stat. 3135; Pub. L. 97–392, § 2, Dec. 29, 1982, 96
Stat. 1963; Pub. L. 99–83, title I, § 115(b)(3), Aug.
8, 1985, 99 Stat. 201; Pub. L. 99–145, title XI,
§ 1102(a)(4), (5), Nov. 8, 1985, 99 Stat. 710; Pub. L.
99–661, div. A, title XIII, § 1342(e), Nov. 14, 1986,
100 Stat. 3991; Pub. L. 103–236, title VII,
§ 714(a)(2), Apr. 30, 1994, 108 Stat. 497; Pub. L.
105–277, div. G, subdiv. A, title XII, § 1225(a)(3),
Oct. 21, 1998, 112 Stat. 2681–773.)
REFERENCES IN TEXT
This chapter, referred to in text, 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.
AMENDMENTS
1998—Subsec. (a). Pub. L. 105–277 struck out par. (1)
designation, struck out ‘‘the assessment of the Director
of the United States Arms Control and Disarmament
Agency as to’’ after ‘‘, and (C)’’, and struck out par. (2)
which read as follows: ‘‘Any proposed sale made pursuant to this chapter shall be approved only after consultation with the Director of the United States Arms
Control and Disarmament Agency. The Director of the
Arms Control and Disarmament Agency is authorized,
whenever the Director determines that a sale under
this section would be detrimental to the national security of the United States, to recommend to the President that such sale be disapproved.’’
1994—Subsec. (a). Pub. L. 103–236 designated existing
provisions as par. (1), redesignated former cls. (1) to (3)
as cls. (A) to (C), respectively, amended cl. (C) generally, and added par. (2). Prior to being amended generally, cl. (C) read as follows: ‘‘in coordination with the
Director of the United States Arms Control and Disarmament Agency, the Director’s opinion as to the extent to which such sale might contribute to an arms
race, or increase the possibility of outbreak or esca-
Page 1047
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
lation of conflict, or prejudice the development of bilateral or multilateral arms control arrangements.’’
1986—Subsec. (e)(1), (3). Pub. L. 99–661 repealed section 1102(a)(4) of Pub. L. 99–145 and the amendments
made by that section, and provided that this section
shall apply as if that section had never been enacted.
See 1985 Amendments note below.
1985—Subsec. (e)(1), (3). Pub. L. 99–83 inserted reference to contracts under section 2767(d) of this title.
Pub. L. 99–145, § 1102(a)(4), which enacted amendments
similar to those provided in Pub. L. 99–83, was repealed.
See 1986 Amendments note below and former section
1102(a)(5) of Pub. L. 99–145 set out as a Repeals; Effective Date note under section 2752 of this title.
1982—Subsecs. (d)(1), (e)(1), (3)(A). Pub. L. 97–392 substituted ‘‘2769 and 2770’’ for ‘‘and 2769’’.
1980—Subsecs. (d)(1), (e)(1), (3). Pub. L. 96–533,
§ 105(e)(3), inserted reference to section 2769 of this
title.
1976—Subsec. (e). Pub. L. 94–329, § 213, added subsec.
(e).
Subsec. (f). Pub. L. 94–329, § 605(b), added subsec. (f).
1975—Subsec. (a)(3). Pub. L. 94–141 inserted provision
relating to coordination with the Director of the
United States Arms Control and Disarmament Agency.
1972—Subsec. (a). Pub. L. 92–226, § 401(e), (f)(1), added
cl. (3) and inserted ‘‘, subject to the provisions of subsection (b) of this section,’’ before ‘‘consideration shall
also be given’’, respectively.
Subsecs. (b) to (d). Pub. L. 92–226, § 401(f)(2), added
subsec. (b) and redesignated former subsecs. (b) and (c)
as (c) and (d).
EFFECTIVE DATE OF 1998 AMENDMENT
Amendment by Pub. L. 105–277 effective Apr. 1, 1999,
see section 1201 of Pub. L. 105–277, set out as an Effective Date note under section 6511 of this title.
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
DELEGATION OF FUNCTIONS
Functions of President under subsecs. (c) and (f) of
this section delegated to Secretary of Defense, with
concurrence of Secretary of State and Secretary of the
Treasury required for any determination proposed
under subsec. (c) of this section, by section 1(p) of Ex.
Ord. No. 11958, Jan. 18, 1977, 42 F.R. 4311, as amended,
set out as a note under section 2751 of this title.
§ 2792. Administrative expenses
(a) Availability of funds
Funds made available under other law for the
operations of United States Government agencies carrying out functions under this chapter
shall be available for the administrative expenses incurred by such agencies under this
chapter.
(b) Charges for administrative expenses and official reception and representation expenses
Charges for administrative services calculated
under section 2761(e)(1)(A) of this title shall include recovery of administrative expenses and
official reception and representation expenses
incurred by any department or agency of the
United States Government, including any mission or group thereof, in carrying out functions
under this chapter when—
(1) such functions are primarily for the benefit of any foreign country;
(2) such expenses are not directly and fully
charged to, and reimbursed from amounts received for, sale of defense services under section 2761(a) of this title; and
§ 2793
(3) such expenses are neither salaries of the
Armed Forces of the United States nor represent unfunded estimated costs of civilian retirement and other benefits.
(c) Limitations on funds used for official reception and representation expenses
Not more than $86,500 of the funds derived
from charges for administrative services pursuant to section 2761(e)(1)(A) of this title may be
used each fiscal year for official reception and
representation expenses.
(Pub. L. 90–629, ch. 4, § 43, Oct. 22, 1968, 82 Stat.
1327; Pub. L. 94–329, title II, § 214, June 30, 1976,
90 Stat. 746; Pub. L. 95–92, § 7(d), Aug. 4, 1977, 91
Stat. 617; Pub. L. 96–92, § 19(b), Oct. 29, 1979, 93
Stat. 709; Pub. L. 97–113, title VII, § 734(a)(10),
Dec. 29, 1981, 95 Stat. 1560; Pub. L. 99–83, title I,
§ 120, Aug. 8, 1985, 99 Stat. 204; Pub. L. 101–165,
title IX, § 9104(b)(1), Nov. 21, 1989, 103 Stat. 1152;
Pub. L. 107–228, div. B, title XII, § 1203, Sept. 30,
2002, 116 Stat. 1427.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a) and (b), 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.
AMENDMENTS
2002—Subsec. (c). Pub. L. 107–228 substituted ‘‘$86,500’’
for ‘‘$72,500’’.
1989—Subsec. (b)(3). Pub. L. 101–165 added par. (3).
1985—Subsec. (b). Pub. L. 99–83, § 120(1), inserted ‘‘and
official reception and representation expenses’’.
Subsec. (c). Pub. L. 99–83, § 120(2), added subsec. (c).
1981—Subsec. (c). Pub. L. 97–113 struck out subsec. (c)
which required a Presidential report to Congress no
later than Jan. 15 of each year containing analysis and
description of Federal personnel arms export control
services performed previous fiscal year. See section
2765(a)(6) of this title.
1979—Subsec. (c). Pub. L. 96–92 added subsec. (c).
1977—Subsec. (b). Pub. L. 95–92 substituted provisions
relating to criteria for recovery of charges for administrative expenses calculated under section 2761(e)(1)(A)
of this title, for provisions relating to reimbursement
from amounts received for sales under sections 2761 and
2762 of this title of administrative expenses incurred by
a United States government department or agency in
carrying out functions under this chapter for the benefit of any foreign country.
1976—Pub. L. 94–329 designated existing provisions as
subsec. (a) and added subsec. (b).
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
§ 2793. Other provisions unaffected
No provision of this chapter shall be construed
as modifying in any way the provisions of the
Atomic Energy Act of 1954, as amended [42
U.S.C. 2011 et seq.], or section 7307 of title 10.
(Pub. L. 90–629, ch. 4, § 44, Oct. 22, 1968, 82 Stat.
1327.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 90–629, Oct. 22, 1968, 82
Stat. 1321, which is classified principally to this chap-
§ 2794
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
ter. For complete classification of this Act to the Code,
see Short Title note set out under section 2751 of this
title and Tables.
The Atomic Energy Act of 1954, as amended, referred
to in text, is act Aug. 1, 1946, ch. 724, as added by act
Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 921, and amended,
which is classified principally to chapter 23 (§ 2011 et
seq.) of Title 42, The Public Health and Welfare. For
complete classification of this Act to the Code, see
Short Title note set out under section 2011 of Title 42
and Tables.
SPECIFIC APPLICATION OF OTHER PROVISIONS TO THIS
CHAPTER
Except for laws specified in this section, other provisions inapplicable to this chapter without a specific
reference thereto or to sales of defense articles and defense services under any Act, see section 45(c) of Pub.
L. 90–629, set out as a note under section 2751 of this
title.
§ 2794. Definitions
For purposes of this chapter, the term—
(1) ‘‘excess defense article’’ has the meaning
provided by section 2403(g) of this title;
(2) ‘‘value’’ means, in the case of an excess
defense article, except as otherwise provided
in section 2761(a) of this title,,1 not less than
the greater of—
(A) the gross cost incurred by the United
States Government in repairing, rehabilitating, or modifying such article, plus the scrap
value; or
(B) the market value, if ascertainable;
(3) ‘‘defense article’’, except as provided in
paragraph (7) of this section, includes—
(A) any weapon, weapons system, munition, aircraft, vessel, boat, or other implement of war,
(B) any property, installation, commodity,
material, equipment, supply, or goods used
for the purposes of making military sales,
(C) any machinery, facility, tool, material,
supply, or other item necessary for the manufacture, production, processing, repair,
servicing, storage, construction, transportation, operation, or use of any article listed
in this paragraph, and
(D) any component or part of any article
listed in this paragraph,
but does not include merchant vessels or (as
defined by the Atomic Energy Act of 1954 [42
U.S.C. 2011 et seq.]) source material (except
uranium depleted in the isotope 235 which is
incorporated in defense articles solely to take
advantage of high density or pyrophoric characteristics unrelated to radioactivity), byproduct material, special nuclear material, production facilities, utilization facilities, or atomic
weapons or articles involving Restricted Data;
(4) ‘‘defense service’’, except as provided in
paragraph (7) of this section, includes any
service, test, inspection, repair, training, publication, technical or other assistance, or defense information (as defined in section 2403(e)
of this title), used for the purposes of making
military sales, but does not include design and
construction services under section 2769 of this
title;
(5) ‘‘training’’ includes formal or informal
instruction of foreign students in the United
1 So
in original.
Page 1048
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;
(6) ‘‘major defense equipment’’ means any
item of significant military equipment on the
United States Munitions List having a nonrecurring research and development cost of
more than $50,000,000 or a total production
cost of more than $200,000,000;
(7) ‘‘defense articles and defense services’’
means, with respect to commercial exports
subject to the provisions of section 2778 of this
title, those items designated by the President
pursuant to subsection (a)(1) of such section;
(8) ‘‘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;
(9) ‘‘significant military equipment’’ means
articles—
(A) for which special export controls are
warranted because of the capacity of such
articles for substantial military utility or
capability; and
(B) identified on the United States Munitions List;
(10) ‘‘weapons of mass destruction’’ has the
meaning provided by section 2302(1) of title 50;
and
(11) ‘‘Sales territory’’ means a country or
group of countries to which a defense article
or defense service is authorized to be reexported.
(Pub. L. 90–629, ch. 4, § 47, as added Pub. L. 93–189,
§ 25(12), Dec. 17, 1973, 87 Stat. 731; amended Pub.
L. 94–329, title II, § 215, June 30, 1976, 90 Stat. 746;
Pub. L. 96–92, § 22, Oct. 29, 1979, 93 Stat. 710; Pub.
L. 96–533, title I, § 105(f), Dec. 16, 1980, 94 Stat.
3135; Pub. L. 99–83, title I, § 107(b), title XII,
§ 1211(b)(3), Aug. 8, 1985, 99 Stat. 197, 279; Pub. L.
104–164, title I, § 144, July 21, 1996, 110 Stat. 1434;
Pub. L. 107–228, div. B, title XII, § 1202(b), title
XIV, § 1405(a)(4), Sept. 30, 2002, 116 Stat. 1427,
1458.)
REFERENCES IN TEXT
This chapter, referred to in introductory provisions,
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.
The Atomic Energy Act of 1954, as amended, referred
to in par. (3), is act Aug. 1, 1946, ch. 724, as added by act
Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 921, and amended,
which is classified principally to chapter 23 (§ 2011 et
seq.) of Title 42, The Public Health and Welfare. For
Page 1049
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
complete classification of this Act to the Code, see
Short Title note set out under section 2011 of Title 42
and Tables.
AMENDMENTS
2002—Par. (10). Pub. L. 107–228, § 1202(b), added par.
(10).
Par. (11). Pub. L. 107–228, § 1405(a)(4), added par. (11).
1996—Par. (9). Pub. L. 104–164 added par. (9).
1985—Par. (2). Pub. L. 99–83, § 107(b), inserted ‘‘, except
as otherwise provided in section 2761(a) of this title,’’.
Par. (6). Pub. L. 99–83, § 1211(b)(3), substituted ‘‘military’’ for ‘‘combat’’.
1980—Par. (4). Pub. L. 96–533, § 105(f)(1), excluded from
term ‘‘defense service’’ design and construction services under section 2769 of this title.
Par. (8). Pub. L. 96–533, § 105(f)(2)–(4), added par. (8).
1979—Par. (3). Pub. L. 96–92 defined ‘‘defense article’’
to include uranium depleted in the isotope 235 which is
incorporated in defense articles solely to take advantage of high density or pyrophoric characteristics unrelated to radioactivity.
1976—Pars. (3) to (7). Pub. L. 94–329 added pars. (3) to
(7).
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
SUBCHAPTER V—SPECIAL DEFENSE
ACQUISITION FUND
§ 2795. Fund
(a) Establishment; purposes; special requirements and responsibilities; continuous orders for certain articles and services; articles
for narcotics control purposes
(1) Under the direction of the President and in
consultation with the Secretary of State, the
Secretary of Defense shall establish a Special
Defense Acquisition Fund (hereafter in this subchapter referred to as the ‘‘Fund’’), to be used as
a revolving fund separate from other accounts,
under the control of the Department of Defense,
to finance the acquisition of defense articles and
defense service in anticipation of their transfer
pursuant to this chapter, the Foreign Assistance
Act of 1961 [22 U.S.C. 2151 et seq.], or as otherwise authorized by law, to eligible foreign countries and international organizations, and may
acquire such articles and services with the funds
in the Fund as he may determine. Acquisition
under this subchapter of items for which the initial issue quantity requirements for United
States Armed Forces have not been fulfilled and
are not under current procurement contract
shall be emphasized when compatible with security assistance requirements for the transfer of
such items.
(2) Nothing in this subchapter may be construed to limit or impair any responsibilities
conferred upon the Secretary of State or the
Secretary of Defense under this chapter or the
Foreign Assistance Act of 1961 [22 U.S.C. 2151 et
seq.].
(3) The Fund may be used to keep on continuous order such defense articles and defense services as are assigned by the Department of Defense for integrated management by a single
agency thereof for the common use of all military departments in anticipation of the transfer
of similar defense articles and defense services
§ 2795
to foreign countries and international organizations pursuant to this chapter, the Foreign Assistance Act of 1961 [22 U.S.C. 2151 et seq.], or
other law.
(4) The Fund shall also be used to acquire defense articles that are particularly suited for
use for narcotics control purposes and are appropriate to the needs of recipient countries, such
as small boats, planes (including helicopters),
and communications equipment.
(b) Collections in Fund
The Fund shall consist of—
(1) collections from sales made under letters
of offer issued pursuant to section 2761(a)(1)(A)
of this title representing the actual value of
defense articles not intended to be replaced in
stock,
(2) collections from sales representing the
value of asset use charges (including contractor rental payments for United States Government-owned plant and production equipment)
and charges for the proportionate recoupment
of nonrecurring research, development, and
production costs, and
(3) collections from sales made under letters
of offer (or transfers made under the Foreign
Assistance Act of 1961 [22 U.S.C. 2151 et seq.])
of defense articles and defense services acquired under this subchapter, representing the
value of such items calculated in accordance
with subparagraph (B) or (C) of section
2761(a)(1) of this title or section 2762 of this
title or section 644(m) of the Foreign Assistance Act of 1961 [22 U.S.C. 2403(m)], as appropriate,
together with such funds as may be authorized
and appropriated or otherwise made available
for the purposes of the Fund.
(c) Amounts
(1) The size of the Fund may not exceed such
dollar amount as is prescribed in section 114(c)
of title 10. For purposes of this limitation, the
size of the Fund is the amounts in the Fund plus
the value (in terms of acquisition cost) of the
defense articles acquired under this subchapter
which have not been transferred from the Fund
in accordance with this subchapter.
(2) Amounts in the Fund shall be available for
obligation in any fiscal year only to such extent
or in such amounts as are provided in advance in
appropriation Acts.
(Pub. L. 90–629, ch. 5, § 51, as added Pub. L. 97–113,
title I, § 108(a), Dec. 29, 1981, 95 Stat. 1522; amended Pub. L. 99–83, title I, § 121, Aug. 8, 1985, 99
Stat. 204; Pub. L. 99–139, § 1(a), Oct. 30, 1985, 99
Stat. 562; Pub. L. 99–433, title I, § 110(h)(1), Oct. 1,
1986, 100 Stat. 1004; Pub. L. 101–231, § 4, Dec. 13,
1989, 103 Stat. 1957; Pub. L. 104–164, title I,
§ 145(b), July 21, 1996, 110 Stat. 1434.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (a)(1) to (3), 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.
The Foreign Assistance Act of 1961, referred to in subsecs. (a) and (b)(3), is Pub. L. 87–195, Sept. 4, 1961, 75
Stat. 424, as amended, which is classified principally to
§ 2795a
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
chapter 32 (§ 2151 et seq.) 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.
AMENDMENTS
1996—Subsec. (a)(4). Pub. L. 104–164 redesignated subpar. (A) as entire par. (4) and struck out subpar. (B)
which read as follows: ‘‘Each report pursuant to section
2795b(a) of this title shall designate the defense articles
that have been acquired or are to be acquired pursuant
to this paragraph and the defense articles acquired
under this subchapter that were transferred for use in
narcotics control purposes.’’
1989—Subsec. (a)(4). Pub. L. 101–231 added par. (4).
1986—Subsec. (c)(1). Pub. L. 99–433 substituted ‘‘section 114(c)’’ for ‘‘section 138(g)’’.
1985—Subsec. (a)(3). Pub. L. 99–83, § 121(a), added par.
(3).
Subsec. (b). Pub. L. 99–139 amended subsec. (b) generally, so as to read similar to how it read prior to the
amendment by Pub. L. 99–83.
Pub. L. 99–83 amended subsec. (b) to read as follows:
‘‘The Fund shall consist of collections from sales made
under letters of offer, or transfers made under the Foreign Assistance Act of 1961, of defense articles and defense services acquired under this subchapter (representing the value of such items calculated in accordance with subparagraph (B) or (C) of section 2761(a)(1)
of this title or section 2762 of this title or section
644(m) of the Foreign Assistance Act of 1961, as appropriate), together with such funds as may be authorized
and appropriated or otherwise made available for the
purposes of the Fund.’’
EFFECTIVE DATE OF 1985 AMENDMENTS
Section 1(b) of Pub. L. 99–139 provided that: ‘‘The
amendment made by subsection (a) [amending this section] shall take effect as of October 1, 1985.’’
Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see
section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.
§ 2795a. Use and transfer of items procured by
Fund
(a) Authorization
No defense article or defense service acquired
by the Secretary of Defense under this subchapter may be transferred to any foreign country or international organization unless such
transfer is authorized by this chapter, the Foreign Assistance Act of 1961 [22 U.S.C. 2151 et
seq.], or other law.
(b) Temporary use
The President may authorize the temporary
use by the United States Armed Forces of defense articles and defense services acquired
under this subchapter prior to their transfer to
a foreign country or international organization,
if such is necessary to meet national defense requirements and the United States Armed Forces
bear the costs of operation and maintenance of
such articles or services while in their use and
the costs of restoration or replacement upon the
termination of such use.
(c) Storage, maintenance and other costs
Except as provided in subsection (b) of this
section, the Fund may be used to pay for storage, maintenance, and other costs related to the
preservation and preparation for transfer of defense articles and defense services acquired
under this subchapter prior to their transfer, as
well as the administrative costs of the Department of Defense incurred in the acquisition of
Page 1050
such items to the extent not reimbursed pursuant to section 2792(b) of this title.
(Pub. L. 90–629, ch. 5, § 52, as added Pub. L. 97–113,
title I, § 108(a), Dec. 29, 1981, 95 Stat. 1523.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (a), 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.
The Foreign Assistance Act of 1961, referred to in subsec. (a), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, as
amended, which is classified principally to chapter 32
(§ 2151 et seq.) 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.
DELEGATION OF FUNCTIONS
Functions of President under subsec. (b) of this section delegated to Secretary of Defense by section 1(q)
of Ex. Ord. No. 11958, Jan. 18, 1977, 42 F.R. 4311, as
amended, set out as a note under section 2751 of this
title.
§ 2795b. Repealed. Pub. L. 104–164, title I, § 145(a),
July 21, 1996, 110 Stat. 1434
Section, Pub. L. 90–629, ch. 5, § 53, as added Pub. L.
97–113, title I, § 108(a), Dec. 29, 1981, 95 Stat. 1524; amended Pub. L. 99–433, title I, § 110(h)(2), Oct. 1, 1986, 100 Stat.
1004, directed President to submit annual report to
Congress on acquisitions of defense articles and services under this subchapter and required report to include estimate of likely procurements to be made
through Special Defense Acquisition Fund.
SUBCHAPTER VI—LEASES OF DEFENSE
ARTICLES AND LOAN AUTHORITY FOR
COOPERATIVE RESEARCH AND DEVELOPMENT PURPOSES
§ 2796. Leasing authority
(a) Preconditions
The President may lease defense articles in
the stocks of the Department of Defense to an
eligible foreign country or international organization if—
(1) he determines that there are compelling
foreign policy and national security reasons
for providing such articles on a lease basis
rather than on a sales basis under this chapter;
(2) he determines that the articles are not
for the time needed for public use;
(3) the President first considers the effects of
the lease of the articles on the national technology and industrial base, particularly the
extent, if any, to which the lease reduces the
opportunities of entities in the national technology and industrial base to sell new equipment to the country or countries to which the
articles are leased; and
(4) the country or international organization
has agreed to pay in United States dollars all
costs incurred by the United States Government in leasing such articles, including reimbursement for depreciation of such articles
while leased, the costs of restoration or replacement if the articles are damaged while
leased, and, if the articles are lost or destroyed while leased—
Page 1051
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(A) in the event the United States intends
to replace the articles lost or destroyed, the
replacement cost (less any depreciation in
the value) of the articles; or
(B) in the event the United States does not
intend to replace the articles lost or destroyed, an amount not less than the actual
value (less any depreciation in the value)
specified in the lease agreement.
The requirement of paragraph (4) shall not apply
to leases entered into for purposes of cooperative research or development, military exercises, or communications or electronics interface projects. The President may waive the requirement of paragraph (4) for reimbursement of
depreciation for any defense article which has
passed three-quarters of its normal service life if
the President determines that to do so is important to the national security interest of the
United States. The President may waive the requirement of paragraph (4) with respect to a
lease which is made in exchange with the lessee
for a lease on substantially reciprocal terms of
defense articles for the Department of Defense,
except that this waiver authority—
(A) may be exercised only if the President
submits to the Committee on Foreign Affairs
and the Committee on Appropriations of the
House of Representatives and the Committee
on Foreign Relations and the Committee on
Appropriations of the Senate, in accordance
with the regular notification procedures of
those Committees, a detailed notification for
each lease with respect to which the authority
is exercised; and
(B) may be exercised only during the fiscal
year 1 the current fiscal year and only with respect to one country, unless the Congress
hereafter provides otherwise.
The preceding sentence does not constitute authorization of appropriations for payments by
the United States for leased articles.
(b) Duration; termination
(1) Each lease agreement under this section
shall be for a fixed duration which may not exceed (A) five years, and (B) a specified period of
time required to complete major refurbishment
work of the leased articles to be performed prior
to the delivery of the leased articles, and shall
provide that, at any time during the duration of
the lease, the President may terminate the lease
and require the immediate return of the leased
articles.
(2) In this subsection, the term ‘‘major refurbishment work’’ means work for which the period of performance is 6 months or more.
(c) Applicable statutory authorities
Defense articles in the stocks of the Department of Defense may be leased or loaned to a
foreign country or international organization
only under the authority of this subchapter or
chapter 2 of part II of the Foreign Assistance
Act of 1961 [22 U.S.C. 2311 et seq.], and may not
be leased to a foreign country or international
organization under the authority of section 2667
of title 10.
1 So in original. The words ‘‘the fiscal year’’ probably should
not appear.
§ 2796
(Pub. L. 90–629, ch. 6, § 61, as added Pub. L. 97–113,
title I, § 109(a), Dec. 29, 1981, 95 Stat. 1524; amended Pub. L. 99–500, § 147, Oct. 18, 1986, 100 Stat.
1783–351, and Pub. L. 99–591, § 147, Oct. 30, 1986, 100
Stat. 3341–354; Pub. L. 100–202, § 101(e) [title V,
§ 556], Dec. 22, 1987, 101 Stat. 1329–131, 1329–170;
Pub. L. 100–461, title V, § 552, Oct. 1, 1988, 102
Stat. 2268–35; Pub. L. 101–167, title V, § 550, Nov.
21, 1989, 103 Stat. 1235; Pub. L. 101–513, title V,
§ 546, Nov. 5, 1990, 104 Stat. 2019; Pub. L. 102–145,
§ 118, as added Pub. L. 102–266, § 102, Apr. 1, 1992,
106 Stat. 93; Pub. L. 102–391, title V, § 544, Oct. 6,
1992, 106 Stat. 1672; Pub. L. 103–87, title V, § 524,
Sept. 30, 1993, 107 Stat. 952; Pub. L. 103–236, title
VII, § 731(e), Apr. 30, 1994, 108 Stat. 503; Pub. L.
103–306, title V, § 524, Aug. 23, 1994, 108 Stat. 1632;
Pub. L. 104–107, title V, § 524, Feb. 12, 1996, 110
Stat. 729; Pub. L. 104–164, title I, §§ 146, 153(a),
July 21, 1996, 110 Stat. 1434, 1440; Pub. L. 104–208,
div. A, title I, § 101(c) [title V, § 524], Sept. 30,
1996, 110 Stat. 3009–121, 3009–149; Pub. L. 105–118,
title V, § 524, Nov. 26, 1997, 111 Stat. 2412; Pub. L.
105–277, div. A, § 101(d) [title V, § 524], Oct. 21,
1998, 112 Stat. 2681–150, 2681–177; Pub. L. 107–228,
div. B, title XII, § 1233, Sept. 30, 2002, 116 Stat.
1433.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (a)(1), 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.
The Foreign Assistance Act of 1961, referred to in subsec. (c), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, as
amended. Chapter 2 of part II of that Act is classified
generally to part II (§ 2311 et seq.) of subchapter II of
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
2151 of this title and Tables.
CODIFICATION
Amendment by Pub. L. 102–145 is based on section 545
of H.R. 2621, One Hundred Second Congress, 1st Session,
as passed by the House of Representatives on June 19,
1991, which was enacted into law by Pub. L. 102–145,
§ 118, as added by Pub. L. 102–266, § 102, Apr. 1, 1992, 106
Stat. 93. Section 118 of Pub. L. 102–145 provided that the
authority and conditions provided in such section 545
shall be applicable to funds appropriated by Pub. L.
102–145 (and are hereby enacted) in lieu of the authority
and conditions provided in section 546 of Pub. L.
101–513. See 1990, 1991, and 1992 Amendment notes below.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
AMENDMENTS
2002—Subsec. (b). Pub. L. 107–228 designated existing
provisions as par. (1), substituted ‘‘which may not exceed (A) five years, and (B) a specified period of time
required to complete major refurbishment work of the
leased articles to be performed prior to the delivery of
the leased articles,’’ for ‘‘of not to exceed five years’’,
and added par. (2).
1998—Subsec. (a). Pub. L. 105–277 substituted ‘‘the current fiscal year’’ for ‘‘1998’’ in par. (B).
1997—Subsec. (a). Pub. L. 105–118 substituted ‘‘1998’’
for ‘‘1997’’ in par. (B).
1996—Subsec. (a). Pub. L. 104–164, § 153(a), struck out
‘‘, or to any defense article which has passed threequarters of its normal service life.’’ after ‘‘electronics
interface projects’’ in second sentence and inserted
after second sentence ‘‘The President may waive the requirement of paragraph (4) for reimbursement of depreciation for any defense article which has passed threequarters of its normal service life if the President de-
§ 2796a
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
termines that to do so is important to the national security interest of the United States.’’
Pub. L. 104–208 substituted ‘‘1997’’ for ‘‘1996’’ in par.
(B).
Pub. L. 104–107 substituted ‘‘1996’’ for ‘‘1995’’ in par.
(B).
Subsec. (a)(4). Pub. L. 104–164, § 146, substituted ‘‘and,
if the articles are lost or destroyed while leased—
‘‘(A) in the event the United States intends to replace the articles lost or destroyed, the replacement
cost (less any depreciation in the value) of the articles; or
‘‘(B) in the event the United States does not intend
to replace the articles lost or destroyed, an amount
not less than the actual value (less any depreciation
in the value) specified in the lease agreement’’ for
‘‘and the replacement cost (less any depreciation in
the value) of the articles if the articles are lost or destroyed while leased’’.
1994—Subsec. (a). Pub. L. 103–306 substituted ‘‘1995’’
for ‘‘1994’’ in par. (B).
Pub. L. 103–236 struck out ‘‘and’’ at end of par. (2),
added par. (3), redesignated former par. (3) as (4), and
substituted ‘‘paragraph (4)’’ for ‘‘paragraph (3)’’ in two
places in provisions following par. (4).
1993—Subsec. (a). Pub. L. 103–87 substituted ‘‘1994’’ for
‘‘1993’’ in par. (B).
1992—Subsec. (a). Pub. L. 102–391 substituted ‘‘1993’’
for ‘‘1992’’ in par. (B).
Pub. L. 102–266 added Pub. L. 102–145, § 118. See 1991
Amendment note below.
1991—Subsec. (a). Pub. L. 102–145, § 118, as added by
Pub. L. 102–266, substituted ‘‘1992’’ for ‘‘1991’’ in par. (B).
See Codification note above.
1990—Subsec. (a). Pub. L. 101–513 substituted ‘‘1991’’
for ‘‘1990’’ in par. (B).
1989—Subsec. (a). Pub. L. 101–167 substituted ‘‘1990’’
for ‘‘1989’’ in par. (B).
1988—Subsec. (a). Pub. L. 100–461 substituted ‘‘1989’’
for ‘‘1988’’ in par. (B).
1987—Subsec. (a). Pub. L. 100–202 substituted ‘‘1988’’
for ‘‘1987’’ in par. (B).
1986—Subsec. (a). Pub. L. 99–500 and Pub. L. 99–591 inserted provision authorizing the President to waive the
requirements of par. (3) with respect to a lease which is
made in exchange with the lessee for a lease on substantially reciprocal terms of defense articles for the
Department of Defense and providing exceptions to
such waiver authority.
EFFECTIVE DATE OF 1996 AMENDMENT
Section 153(b) of Pub. L. 104–164 provided that: ‘‘The
third sentence of section 61(a) of the Arms Export Control Act, as added by subsection (a)(2) [22 U.S.C.
2796(a)], shall apply only with respect to a defense article leased on or after the date of the enactment of this
Act [July 21, 1996].’’
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of Defense by section 1(r) of Ex. Ord. No.
11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as
a note under section 2751 of this title.
§ 2796a. Reports to Congress
(a) Written certification to Speaker of the House
and chairmen of Congressional committees
Before entering into or renewing any agreement with a foreign country or international organization to lease any defense article under
this subchapter, or to loan any defense article
under chapter 2 of part II of the Foreign Assistance Act of 1961 [22 U.S.C. 2311 et seq.], for a period of one year or longer, the President shall
transmit to the Speaker of the House of Representatives, and to the chairman of the Committee on Foreign Relations of the Senate and
Page 1052
the chairman of the Committee on Armed Services of the Senate, a written certification which
specifies—
(1) the country or international organization
to which the defense article is to be leased or
loaned;
(2) the type, quantity, and value (in terms of
replacement cost) of the defense article to be
leased or loaned;
(3) the terms and duration of the lease or
loan; and
(4) a justification for the lease or loan, including an explanation of why the defense article is being leased or loaned rather than sold
under this chapter.
(b) Waiver; determination of emergency
The President may waive the requirements of
this section (and in the case of an agreement described in section 2796b of this title, may waive
the provisions of that section) if he states in his
certification, that an emergency exists which
requires that the lease or loan be entered into
immediately in the national security interests
of the United States. If the President states in
his certification that such an emergency exists,
he shall set forth in the certification a detailed
justification for his determination, including a
description of the emergency circumstances
which necessitate that the lease be entered into
immediately and a discussion of the national security interests involved.
(c) Transmission of certification
The certification required by subsection (a) of
this section shall be transmitted—
(1) not less than 15 calendar days before the
agreement is entered into or renewed in the
case of an agreement with the North Atlantic
Treaty Organization, any member country of
that Organization or Australia, Japan, the Republic of Korea, Israel, or New Zealand; and
(2) not less than 30 calendar days before the
agreement is entered into or renewed in the
case of an agreement with any other organization or country.
(Pub. L. 90–629, ch. 6, § 62, as added Pub. L. 97–113,
title I, § 109(a), Dec. 29, 1981, 95 Stat. 1525; amended Pub. L. 104–164, title I, § 141(e)(1), July 21, 1996,
110 Stat. 1432; Pub. L. 110–429, title II, § 203(b)(1),
Oct. 15, 2008, 122 Stat. 4845; Pub. L. 111–266, title
III, § 301(1), Oct. 8, 2010, 124 Stat. 2804.)
REFERENCES IN TEXT
The Foreign Assistance Act of 1961, referred to in subsec. (a), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, as
amended. Chapter 2 of part II of that Act is classified
generally to part II (§ 2311 et seq.) of subchapter II of
this chapter. 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 subsec. (a)(4), 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.
AMENDMENTS
2010—Subsec. (c)(1). Pub. L. 111–266 inserted ‘‘Israel,’’
before ‘‘or New Zealand’’.
2008—Subsec. (c)(1). Pub. L. 110–429 inserted ‘‘the Republic of Korea,’’ before ‘‘or New Zealand’’.
Page 1053
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
1996—Subsec. (a). Pub. L. 104–164, § 141(e)(1)(A), substituted ‘‘Before’’ for ‘‘Not less than 30 days before’’.
Subsec. (b). Pub. L. 104–164, § 141(e)(1)(B), substituted
‘‘states in his certification’’ for ‘‘determines, and immediately reports to the Congress’’ and inserted at end
‘‘If the President states in his certification that such
an emergency exists, he shall set forth in the certification a detailed justification for his determination,
including a description of the emergency circumstances
which necessitate that the lease be entered into immediately and a discussion of the national security interests involved.’’
Subsec. (c). Pub. L. 104–164, § 141(e)(1)(C), added subsec. (c).
§ 2796c
lution after it has been reported by the appropriate committee shall be treated as highly privileged in the House of Representatives.
(Pub. L. 90–629, ch. 6, § 63, as added Pub. L. 97–113,
title I, § 109(a), Dec. 29, 1981, 95 Stat. 1525; amended Pub. L. 99–247, § 1(d), Feb. 12, 1986, 100 Stat. 9;
Pub. L. 104–164, title I, § 141(e)(2), July 21, 1996,
110 Stat. 1433; Pub. L. 107–228, div. B, title XIV,
§ 1405(a)(3), Sept. 30, 2002, 116 Stat. 1457; Pub. L.
110–429, title II, § 203(b)(1), Oct. 15, 2008, 122 Stat.
4845; Pub. L. 111–266, title III, § 301(1), Oct. 8, 2010,
124 Stat. 2804.)
EFFECTIVE DATE OF 1996 AMENDMENT
REFERENCES IN TEXT
Amendment by Pub. L. 104–164 applicable with respect to certifications required to be submitted on or
after July 21, 1996, see section 141(f) of Pub. L. 104–164,
set out as a note under section 2753 of this title.
The Foreign Assistance Act of 1961, referred to in subsec. (a)(1), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, as
amended. Chapter 2 of part II of that Act is classified
generally to part II (§ 2311 et seq.) of subchapter II of
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
2151 of this title and Tables.
Section 601(b) of the International Security Assistance and Arms Export Control Act of 1976, referred to
in subsec. (b), is section 601(b) of Pub. L. 94–329, June 30,
1976, 90 Stat. 765, which made provision for expedited
procedures in the Senate, and was not classified to the
Code.
DELEGATION OF FUNCTIONS
Functions of President under subsec. (a) of this section delegated to Secretary of Defense by section 1(r) of
Ex. Ord. No. 11958, Jan. 18, 1977, 42 F.R. 4311, as amended, set out as a note under section 2751 of this title.
§ 2796b. Legislative review procedures
(a) Applicability
(1) Subject to paragraph (2), in the case of any
agreement involving the lease under this subchapter, or the loan under chapter 2 of part II of
the Foreign Assistance Act of 1961 [22 U.S.C. 2311
et seq.], to any foreign country or international
organization for a period of one year or longer of
any defense articles which are either (i) major
defense equipment valued (in terms of its replacement cost less any depreciation in its
value) at $14,000,000 or more, or (ii) defense articles valued (in terms of their replacement cost
less any depreciation in their value) at
$50,000,000 or more, the agreement may not be
entered into or renewed if the Congress, within
the 15-day or 30-day period specified in section
2796a(c)(1) or (2) of this title, as the case may be,
enacts a joint resolution prohibiting the proposed lease or loan.
(2) In the case of an agreement described in
paragraph (1) that is entered into with a member country of the North Atlantic Treaty Organization (NATO) or Australia, Japan, the Republic of Korea, Israel, or New Zealand, the limitations in paragraph (1) shall apply only if the
agreement involves a lease or loan of—
(A) major defense equipment valued (in
terms of its replacement cost less any depreciation in its value) at $25,000,000 or more; or
(B) defense articles valued (in terms of their
replacement cost less any depreciation in
their value) at $100,000,000 or more.
(b) Consideration of resolution
Any joint resolution under subsection (a) of
this section 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.
(c) Highly privileged nature of resolution
For the purpose of expediting the consideration and enactment of joint resolutions under
subsection (a) of this section, a motion to proceed to the consideration of any such joint reso-
AMENDMENTS
2010—Subsec. (a)(2). Pub. L. 111–266 inserted ‘‘Israel,’’
before ‘‘or New Zealand’’ in introductory provisions.
2008—Subsec. (a)(2). Pub. L. 110–429 inserted ‘‘the Republic of Korea,’’ before ‘‘or New Zealand’’.
2002—Subsec. (a). Pub. L. 107–228 designated existing
provisions as par. (1), substituted ‘‘Subject to paragraph (2), in the case of’’ for ‘‘In the case of’’, and added
par. (2).
1996—Subsec. (a). Pub. L. 104–164 redesignated par. (1)
as entire subsec. (a), substituted ‘‘the 15-day or 30-day
period specified in section 2796a(c)(1) or (2) of this title,
as the case may be’’ for ‘‘30 calendar days after receiving the certification with respect to that proposed
agreement pursuant to section 2796a(a) of this title’’,
and struck out par. (2) which read as follows: ‘‘This section shall not apply with respect to a loan or lease to
the North Atlantic Treaty Organization, any member
country of that Organization, Japan, Australia, or New
Zealand.’’
1986—Subsec. (a)(1). Pub. L. 99–247, § 1(d)(1), substituted ‘‘enacts a joint resolution prohibiting’’ for
‘‘adopts a concurrent resolution stating that it objects
to’’.
Subsec. (b). Pub. L. 99–247, § 1(d)(2), inserted ‘‘joint’’
before ‘‘resolution’’.
Subsec. (c). Pub. L. 99–247, § 1(d)(3), substituted ‘‘enactment of joint resolutions’’ for ‘‘adoption of concurrent resolutions’’ and ‘‘such joint resolution’’ for ‘‘such
resolution’’.
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104–164 applicable with respect to certifications required to be submitted on or
after July 21, 1996, see section 141(f) of Pub. L. 104–164,
set out as a note under section 2753 of this title.
§ 2796c. Applicability of other statutory provisions
Any reference to sales of defense articles
under this chapter in any provision of law restricting the countries or organizations to which
such sales may be made shall be deemed to include a reference to leases of defense articles
under this subchapter.
(Pub. L. 90–629, ch. 6, § 64, as added Pub. L. 97–113,
title I, § 109(a), Dec. 29, 1981, 95 Stat. 1526.)
§ 2796d
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
REFERENCES IN TEXT
This chapter, referred to in text, 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.
§ 2796d. Loan of materials, supplies, and equipment for research and development purposes
(a) Loan or gift transactions; written agreement;
covered programs
(1) Except as provided in subsection (c) of this
section, the Secretary of Defense may loan to a
country that is a NATO or major non-NATO ally
materials, supplies, or equipment for the purpose of carrying out a program of cooperative
research, development, testing, or evaluation.
The Secretary may accept as a loan or a gift
from a country that is a NATO or major nonNATO ally materials, supplies, or equipment for
such purpose.
(2) Each loan or gift transaction entered into
by the Secretary under this section shall be provided for under the terms of a written agreement between the Secretary and the country
concerned.
(3) A program of testing or evaluation for
which the Secretary may loan materials, supplies, or equipment under this section includes a
program of testing or evaluation conducted solely for the purpose of standardization, interchangeability, or technical evaluation if the
country to which the materials, supplies, or
equipment are loaned agrees to provide the results of the testing or evaluation to the United
States without charge.
(b) Reimbursement of consumed materials, etc.
The materials, supplies, or equipment loaned
to a country under this section may be expended
or otherwise consumed in connection with any
testing or evaluation program without a requirement for reimbursement of the United
States if the Secretary—
(1) determines that the success of the research, development, test, or evaluation depends upon expending or otherwise consuming
the materials, supplies, or equipment loaned
to the country; and
(2) approves of the expenditure or consumption of such materials, supplies, or equipment.
(c) Prohibitions
The Secretary of Defense may not loan to a
country under this section any material if the
material is a strategic and critical material and
if, at the time the loan is to be made, the quantity of the material in the National Defense
Stockpile (provided for under section 98b of title
50) is less than the quantity of such material to
be stockpiled, as determined by the President
under section 98b(a) of title 50.
(d) ‘‘NATO ally’’ defined
For purposes of this section, the term ‘‘NATO
ally’’ means a member country of the North Atlantic Treaty Organization (other than the
United States).
(Pub. L. 90–629, ch. 6, § 65, as added Pub. L.
100–456, div. A, title X, § 1003(a), Sept. 29, 1988, 102
Page 1054
Stat. 2038; amended Pub. L. 102–25, title VII,
§ 705(d)(2), Apr. 6, 1991, 105 Stat. 120; Pub. L.
104–164, title I, § 147(a)(3)(B), July 21, 1996, 110
Stat. 1435.)
AMENDMENTS
1996—Subsec. (d). Pub. L. 104–164 struck out ‘‘or major
non-NATO’’ after ‘‘NATO’’ and ‘‘or a foreign country
other than a member nation of NATO designated as a
major non-NATO ally under section 2350a(i)(3) of title
10’’ after ‘‘(other than the United States)’’.
1991—Subsec. (d). Pub. L. 102–25 substituted ‘‘section
2350a(i)(3) of title 10’’ for ‘‘section 2767a of this title’’.
SUBCHAPTER VII—CONTROL OF MISSILES
AND MISSILE EQUIPMENT OR TECHNOLOGY
§ 2797. Licensing
(a) Establishment of list of controlled items
The Secretary of State, in consultation with
the Secretary of Defense and the heads of other
appropriate departments and agencies, shall establish and maintain, as part of the United
States Munitions List, a list of all items on the
MTCR Annex the export of which is not controlled under section 2405(l) of title 50, Appendix.
(b) Referral of license applications
(1) A determination of the Secretary of State
to approve a license for the export of an item on
the list established under subsection (a) of this
section may be made only after the license application is referred to the Secretary of Defense.
(2) Within 10 days after a license is issued for
the export of an item on the list established
under subsection (a) of this section, the Secretary of State shall provide to the Secretary of
Defense and the Secretary of Commerce the license application and accompanying documents
issued to the applicant, to the extent that the
relevant Secretary indicates the need to receive
such application and documents.
(c) Information sharing
The Secretary of State shall establish a procedure for sharing information with appropriate
officials of the intelligence community, as determined by the Director of Central Intelligence, and with other appropriate Government
agencies, that will ensure effective monitoring
of transfers of MTCR equipment or technology
and other missile technology.
(d) Exports to space launch vehicle programs
Within 15 days after the issuance of a license
(including any brokering license) for the export
of items valued at less than $50,000,000 that are
controlled under this chapter pursuant to
United States obligations under the Missile
Technology Control Regime and are goods or
services that are intended to support the design,
utilization, development, or production of a
space launch vehicle system listed in Category I
of the MTCR Annex, the Secretary shall transmit to the Congress a report describing the licensed export and rationale for approving such
export, including the consistency of such export
with United States missile nonproliferation policy. The requirement contained in the preceding
sentence shall not apply to licenses for exports
to countries that were members of the MTCR as
of April 17, 1987.
Page 1055
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(Pub. L. 90–629, ch. 7, § 71, as added Pub. L.
101–510, div. A, title XVII, § 1703, Nov. 5, 1990, 104
Stat. 1745; amended Pub. L. 103–236, title VII,
§§ 714(a)(3)–(6), 735(c), Apr. 30, 1994, 108 Stat. 497,
506; Pub. L. 105–277, div. G, subdiv. A, title XII,
§ 1225(a)(4)–(7), Oct. 21, 1998, 112 Stat. 2681–773;
Pub. L. 106–280, title VII, § 708(c), Oct. 6, 2000, 114
Stat. 863.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (d), 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.
AMENDMENTS
2000—Subsec. (d). Pub. L. 106–280 substituted ‘‘Within
15 days after the issuance of a license (including any
brokering license) for the export of items valued at less
than $50,000,000 that are controlled under this chapter
pursuant to United States obligations under the Missile
Technology Control Regime and are goods or services
that are intended to support the design, utilization, development, or production of a space launch vehicle system listed in Category I of the MTCR Annex,’’ for
‘‘Within 15 days after the issuance of a license for the
export of items valued at less than $14,000,000 that are
controlled under this chapter pursuant to United
States obligations under the Missile Technology Control Regime and intended to support the design, development, or production of a space launch vehicle system
listed in Category I of the MTCR Annex,’’.
1998—Subsec. (a). Pub. L. 105–277, § 1225(a)(4), struck
out ‘‘, the Director of the Arms Control and Disarmament Agency,’’ after ‘‘Secretary of Defense’’.
Subsec. (b)(1). Pub. L. 105–277, § 1225(a)(5), struck out
‘‘and the Director of the United States Arms Control
and Disarmament Agency’’ after ‘‘Secretary of Defense’’.
Subsec. (b)(2). Pub. L. 105–277, § 1225(a)(6), substituted
‘‘and the Secretary of Commerce’’ for ‘‘the Secretary of
Commerce, and the Director of the United States Arms
Control and Disarmament Agency’’ and struck out ‘‘or
the Director’’ after ‘‘the relevant Secretary’’.
Subsec. (c). Pub. L. 105–277, § 1225(a)(7), struck out
‘‘with the Director of the United States Arms Control
and Disarmament Agency,’’ after ‘‘Director of Central
Intelligence,’’.
1994—Subsec. (a). Pub. L. 103–236, § 714(a)(3), inserted
‘‘, the Director of the Arms Control and Disarmament
Agency,’’ after ‘‘the Secretary of Defense’’.
Subsec. (b)(1). Pub. L. 103–236, § 714(a)(4), inserted
‘‘and the Director of the United States Arms Control
and Disarmament Agency’’ after ‘‘Secretary of Defense’’.
Subsec. (b)(2). Pub. L. 103–236, § 714(a)(5), substituted
‘‘, the Secretary of Commerce, and the Director of the
United States Arms Control and Disarmament Agency’’
for ‘‘and the Secretary of Commerce’’ and inserted ‘‘or
the Director’’ after ‘‘relevant Secretary’’.
Subsec. (c). Pub. L. 103–236, § 714(a)(6), inserted ‘‘with
the Director of the United States Arms Control and
Disarmament Agency,’’ after ‘‘Director of Central Intelligence,’’.
Subsec. (d). Pub. L. 103–236, § 735(c), added subsec. (d).
CHANGE OF NAME
Reference to the Director of Central Intelligence or
the Director of the Central Intelligence Agency in the
Director’s capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of
the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agen-
§ 2797
cy. See section 1081(a), (b) of Pub. L. 108–458, set out as
a note under section 401 of Title 50, War and National
Defense.
EFFECTIVE DATE OF 1998 AMENDMENT
Amendment by Pub. L. 105–277 effective Apr. 1, 1999,
see section 1201 of Pub. L. 105–277, set out as an Effective Date note under section 6511 of this title.
DELEGATION OF FUNCTIONS
Memorandum of President of the United States, June
25, 1991, 56 F.R. 31041, which provided for delegation of
certain functions of the President, was superseded by
Ex. Ord. No. 12851, § 7, June 11, 1993, 58 F.R. 33181, set
out below.
POLICY AND SENSE OF CONGRESS ON NONPROLIFERATION
OF BALLISTIC MISSILES
Pub. L. 108–375, div. A, title XII, § 1212, Oct. 28, 2004,
118 Stat. 2087, provided that:
‘‘(a) FINDINGS.—Congress makes the following findings:
‘‘(1) Certain countries are seeking to acquire ballistic missiles and related technologies that could be
used to attack the United States or place at risk
United States interests, deployed members of the
Armed Forces, and allies of the United States and
other friendly foreign countries.
‘‘(2) Certain countries continue to actively transfer
or sell ballistic missile technologies in contravention
of standards of behavior established by the United
States and allies of the United States and other
friendly foreign countries.
‘‘(3) The spread of ballistic missiles and related
technologies worldwide has been slowed by a combination of national and international export controls,
forward-looking diplomacy, and multilateral interdiction activities to restrict the development and
transfer of such missiles and technologies.
‘‘(b) POLICY.—It is the policy of the United States to
develop, support, and strengthen international accords
and other cooperative efforts to curtail the proliferation of ballistic missiles and related technologies which
could threaten the territory of the United States, allies
of the United States and other friendly foreign countries, and deployed members of the Armed Forces of the
United States with weapons of mass destruction.
‘‘(c) SENSE OF CONGRESS.—It is the sense of Congress
that—
‘‘(1) the United States should vigorously pursue foreign policy initiatives aimed at eliminating, reducing, or retarding the proliferation of ballistic missiles
and related technologies; and
‘‘(2) the United States and the international community should continue to support and strengthen established international accords and other cooperative
efforts, including United Nations Security Council
Resolution 1540 (April 28, 2004) and the Missile Technology Control Regime, that are designed to eliminate, reduce, or retard the proliferation of ballistic
missiles and related technologies.’’
MTCR REPORT TRANSMITTALS
Pub. L. 106–280, title VII, § 704, Oct. 6, 2000, 114 Stat.
861, provided that: ‘‘For purposes of section 71(d) of the
Arms Export Control Act (22 U.S.C. 2797(d)), the requirement that reports under that section shall be
transmitted to the Congress shall be considered to be a
requirement that such reports shall be transmitted to
the Committee on International Relations [now Committee on Foreign Affairs] of the House of Representatives and the Committee on Foreign Relations and the
Committee on Banking, Housing and Urban Affairs of
the Senate.’’
REPORT ON MISSILE PROLIFERATION
Section 1704 of Pub. L. 101–510 directed President to
submit to Congress reports on international transfers
of aircraft which the Secretary had reason to believe
§ 2797
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
may be intended to be used for delivery of nuclear, biological, or chemical weapons and international transfers of MTCR equipment or technology to any country
seeking to acquire such equipment or technology, and
which provided for contents of reports, countries excluded from such reports, classification of information,
and definitions, prior to repeal by Pub. L. 102–190, div.
A, title X, § 1097(g), Dec. 5, 1991, 105 Stat. 1491.
EX. ORD. NO. 12851. ADMINISTRATION OF PROLIFERATION
SANCTIONS, MIDDLE EAST ARMS CONTROL, AND RELATED CONGRESSIONAL REPORTING RESPONSIBILITIES
Ex. Ord. No. 12851, June 11, 1993, 58 F.R. 33181, provided:
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including section 301 of title 3, United States
Code; sections 1701–1703 of the National Defense Authorization Act for Fiscal Year 1991, Public Law 101–510
(50 U.S.C. App. 2402 note, 2405, 2410b; 22 U.S.C.
2797–2797c); sections 303, 324 [105 Stat. 708, 711], and
401–405 [22 U.S.C. 2778 note] of the Foreign Relations
Authorization Act, Fiscal Years 1992 and 1993, Public
Law 102–138; sections 305–308 of the Chemical and Biological Weapons Control and Warfare Elimination Act
of 1991, Public Law 102–182 (50 U.S.C. App. 2410c; 22
U.S.C. 2798, 5604–5606); sections 241 [105 Stat. 1326] and
1097 [former 22 U.S.C. 2751 note] of the National Defense
Authorization Act for Fiscal Years 1992 and 1993, Public
Law 102–190; and section 1364 of the National Defense
Authorization Act for Fiscal Year 1993, Public Law
102–484 [106 Stat. 2561], I hereby order as follows:
SECTION 1. Chemical and Biological Weapons Proliferation and Use Sanctions. (a) Chemical and Biological Weapons Proliferation. The authority and duties vested in me
by section 81 of the Arms Export Control Act, as
amended (‘‘AECA’’) (22 U.S.C. 2798), and section 11C of
the Export Administration Act of 1979, as amended
(‘‘EAA’’) (50 U.S.C. App. 2410c), are delegated to the
Secretary of State, except that:
(1) The authority and duties vested in me to deny certain United States Government contracts, as provided
in section 81(c)(1)(A) of the AECA and section
11C(c)(1)(A) of the EAA, pursuant to a determination
made by the Secretary of State under section 81(a)(1) of
the AECA or section 11C(a)(1) of the EAA, as well as the
authority and duties vested in me to make the determinations provided for in section 81(c)(2) of the AECA
and section 11C(c)(2) of the EAA are delegated to the
Secretary of Defense. The Secretary of Defense shall
notify the Secretary of the Treasury of determinations
made pursuant to section 81(c)(2) of the AECA and section 11(c)(2) [11C(c)(2)] of the EAA.
(2) The authority and duties vested in me to prohibit
certain imports as provided in section 81(c)(1)(B) of the
AECA and section 11C(c)(1)(B) of the EAA, pursuant to
a determination made by the Secretary of State under
section 81(a)(1) of the AECA or section 11C(a)(1) of the
EAA, and the obligation to implement the exceptions
provided in section 81(c)(2) of the AECA and section
11C(c)(2) of the EAA, insofar as the exceptions affect
imports of goods into the United States, are delegated
to the Secretary of the Treasury.
(b) Chemical and Biological Weapons Use. The authority and duties vested in me by sections 306–308 of the
Chemical and Biological Weapons Control and Warfare
Elimination Act of 1991 (22 U.S.C. 5604–5606) are delegated to the Secretary of State, except that:
(1) The authority and duties vested in me to restrict
certain imports as provided in section 307(b)(2)(D) [22
U.S.C. 5605(b)(2)(D)], pursuant to a determination made
by the Secretary of State under section 307(b)(1), are
delegated to the Secretary of the Treasury.
(2) The Secretary of State shall issue, transmit to the
Congress, and notify the Secretary of the Treasury of,
as appropriate, waivers based upon findings made pursuant to section 307(d)(1)(A)(ii).
(3) The authority and duties vested in me to prohibit
certain exports as provided in section 307(a)(5) and section 307(b)(2)(C), pursuant to a determination made by
Page 1056
the Secretary of State under section 306(a)(1) and section 307(b)(1), are delegated to the Secretary of Commerce.
(c) Coordination Among Agencies. The Secretaries designated in this section shall exercise all functions delegated to them by this section in consultation with the
Secretary of State, the Secretary of Defense, the Secretary of the Treasury, the Secretary of Commerce, the
Director of the Arms Control and Disarmament Agency, and other departments and agencies as appropriate,
utilizing the appropriate interagency groups prior to
any determination to exercise the prohibition authority delegated hereby.
SEC. 2. Missile Proliferation Sanctions. (a) Arms Export
Control Act. The authority and duties vested in me by
sections 72–73 of the AECA (22 U.S.C. 2797a–2797b) are
delegated to the Secretary of State, except that:
(1) The authority and duties vested in me by section
72(a)(1) to make determinations with respect to violations by United States persons of the EAA [50 U.S.C.
App. 2401 et seq.] are delegated to the Secretary of
Commerce.
(2) The authority and duties vested in me to deny certain United States Government contracts as provided
in sections 73(a)(2)(A)(i) and 73(a)(2)(B)(i), pursuant to a
determination made by the Secretary of State under
section 73(a)(1), as well as the authority and duties
vested in me to make the findings provided in sections
72(c), 73(f), and 73(g)(1), are delegated to the Secretary
of Defense. The Secretary of State shall issue, transmit
to the Congress, and notify the Secretary of the Treasury of, as appropriate, any waivers based upon findings
made pursuant to sections 72(c) and 73(f).
(3) The authority and duties vested in me to prohibit
certain imports as provided in section 73(a)(2)(C), pursuant to a determination made by the Secretary of
State under that section, and the obligation to implement the exceptions provided in section 73(g), are delegated to the Secretary of the Treasury.
(b) Export Administration Act. The authority and duties vested in me by section 11B of the EAA (50 U.S.C.
App. 2410b) are delegated to the Secretary of Commerce, except that:
(1) The authority and duties vested in me by sections
11B(a)(1)(A) (insofar as such section authorizes determinations with respect to violations by United States
persons of the AECA [22 U.S.C. 2751 et seq.]), 11B(b)(1)
(insofar as such section authorizes determinations regarding activities by foreign persons), and 11B(b)(5) are
delegated to the Secretary of State.
(2) The authority and duties vested in me to make
the findings provided in sections 11B(a)(3), 11B(b)(6),
and 11B(b)(7)(A) are delegated to the Secretary of Defense. The Secretary of Commerce shall issue, transmit
to the Congress, and notify the Secretary of the Treasury of, as appropriate, waivers based upon findings
made pursuant to section 11B(a)(3). The Secretary of
State shall issue, transmit to the Congress, and notify
the Secretary of the Treasury of, as appropriate, waivers based upon findings made pursuant to section
11B(b)(6).
(3) The authority and duties vested in me to prohibit
certain imports as provided in section 11B(b)(1), pursuant to a determination by the Secretary of State under
that section, and the obligation to implement the exceptions provided in section 11B(b)(7), are delegated to
the Secretary of the Treasury.
(c) Reporting Requirements. The authority and duties
vested in me to make certain reports to the Congress
as provided in section 1097 of the National Defense Authorization Act for Fiscal Years 1992 and 1993 [former 22
U.S.C. 2751 note] and section 1364 of the National Defense Authorization Act for Fiscal Year 1993 [Pub. L.
102–484, 106 Stat. 2561] are delegated to the Secretary of
State.
(d) Coordination Among Agencies. The Secretaries designated in this section shall exercise all functions delegated to them by this section in consultation with the
Secretary of State, the Secretary of Defense, the Secretary of the Treasury, the Secretary of Commerce, the
Page 1057
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
Director of the Arms Control and Disarmament Agency, and other departments and agencies as appropriate,
utilizing the appropriate interagency groups prior to
any determination to exercise prohibition authority
delegated hereby.
SEC. 3. Arms Control in the Middle East. The certification and reporting functions vested in me by sections
403 and 404 of the Foreign Relations Authorization Act,
Fiscal Years 1992 and 1993 [22 U.S.C. 2778 note], are delegated to the Secretary of State. The Secretary of State
shall exercise these functions in consultation with the
Secretary of Defense and other agencies as appropriate.
SEC. 4. China and Weapons Proliferation. The reporting
functions regarding China and weapons proliferation
vested in me by sections 303(a)(2) and 324 of the Foreign
Relations Authorization Act, Fiscal Years 1992 and 1993
[Pub. L. 102–138, 105 Stat. 709, 711], are delegated to the
Secretary of State. The Secretary of State shall exercise these functions in consultation with the Secretary
of Defense and other agencies as appropriate.
SEC. 5. Arrow Tactical Anti-Missile Program. The authority and duties vested in me to make certain certifications as provided by section 241(b)(3)(C) of the National Defense Authorization Act for Fiscal Years 1992
and 1993 [Pub. L. 102–190, 105 Stat. 1327] are delegated to
the Secretary of State.
SEC. 6. Delegations. The functions delegated herein
may be redelegated as appropriate. Regulations necessary to carry out the functions delegated herein may
be issued as appropriate.
SEC. 7. Priority. This order supercedes the Memorandum of the President, ‘‘Delegation of Authority Regarding Missile Technology Proliferation,’’ June 25,
1991. To the extent that this order is inconsistent with
any provisions of any prior Executive order or Presidential memorandum, this order shall control.
WILLIAM J. CLINTON.
[For abolition, transfer of functions, and treatment
of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of this title.]
§ 2797a. Denial of transfer of missile equipment
or technology by United States persons
(a) Sanctions
(1) If the President determines that a United
States person knowingly—
(A) exports, transfers, or otherwise engages
in the trade of any item on the MTCR Annex,
in violation of the provisions of section 2778 of
this title, section 2404 or 2405 of title 50, Appendix, or any regulations or orders issued
under any such provisions,
(B) conspires to or attempts to engage in
such export, transfer, or trade, or
(C) facilitates such export, transfer, or trade
by any other person,
then the President shall impose the applicable
sanctions described in paragraph (2).
(2) The sanctions which apply to a United
States person under paragraph (1) are the following:
(A) If the item on the MTCR Annex involved
in the export, transfer, or trade is missile
equipment or technology within category II of
the MTCR Annex, then the President shall
deny to such United States person for a period
of 2 years—
(i) United States Government contracts relating to missile equipment or technology;
and
(ii) licenses for the transfer of missile
equipment or technology controlled under
this chapter.
(B) If the item on the MTCR Annex involved
in the export, transfer, or trade is missile
§ 2797b
equipment or technology within category I of
the MTCR, then the President shall deny to
such United States person for a period of not
less than 2 years—
(i) all United States Government contracts, and
(ii) all export licenses and agreements for
items on the United States Munitions List.
(b) Discretionary sanctions
In the case of any determination made pursuant to subsection (a) of this section, the President may pursue any penalty provided in section
2778(c) of this title.
(c) Presumption
In determining whether to apply sanctions
under subsection (a) of this section to a United
States person involved in the export, transfer, or
trade of an item on the MTCR Annex, it should
be a rebuttable presumption that such item is
designed for use in a missile listed in the MTCR
Annex if the President determines that the final
destination of the item is a country the government of which the Secretary of State has determined, for purposes of 2405(j)(1)(A) 1 of title 50,
Appendix, has repeatedly provided support for
acts of international terrorism.
(d) Waiver
The President may waive the imposition of
sanctions under subsection (a) of this section
with respect to a product or service if the President certifies to the Congress that—
(1) the product or service is essential to the
national security of the United States; and
(2) such person is a sole source supplier of
the product or service, the product or service
is not available from any alternative reliable
supplier, and the need for the product or service cannot be met in a timely manner by improved manufacturing processes or technological developments.
(Pub. L. 90–629, ch. 7, § 72, as added Pub. L.
101–510, div. A, title XVII, § 1703, Nov. 5, 1990, 104
Stat. 1745; amended Pub. L. 103–236, title VII,
§ 734(a), Apr. 30, 1994, 108 Stat. 505.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (a)(2)(A)(ii), 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.
AMENDMENTS
1994—Subsecs. (c), (d). Pub. L. 103–236 added subsec.
(c) and redesignated former subsec. (c) as (d).
DELEGATION OF FUNCTIONS
For delegation of certain functions of the President
under this section, see Ex. Ord. No. 12851, § 2(a), June 11,
1993, 58 F.R. 33181, set out as a note under section 2797
of this title.
§ 2797b. Transfers of missile equipment or technology by foreign persons
(a) Sanctions
(1) Subject to subsections (c) through (g) 1 of
this section, if the President determines that a
1 So
in original. Probably should be preceded by ‘‘section’’.
References in Text note below.
1 See
§ 2797b
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
foreign person, after November 5, 1990, knowingly—
(A) exports, transfers, or otherwise engages
in the trade of any MTCR equipment or technology that contributes to the acquisition, design, development, or production of missiles in
a country that is not an MTCR adherent and
would be, if it were United States-origin
equipment or technology, subject to the jurisdiction of the United States under this chapter,
(B) conspires to or attempts to engage in
such export, transfer, or trade, or
(C) facilitates such export, transfer, or trade
by any other person,
or if the President has made a determination
with respect to a foreign person under section
2410b(b)(1) of title 50, Appendix, then the President shall impose on that foreign person the applicable sanctions under paragraph (2).
(2) The sanctions which apply to a foreign person under paragraph (1) are the following:
(A) If the item involved in the export, transfer, or trade is within category II of the MTCR
Annex, then the President shall deny, for a period of 2 years—
(i) United States Government contracts relating to missile equipment or technology;
and
(ii) licenses for the transfer to such foreign
person of missile equipment or technology
controlled under this chapter.
(B) If the item involved in the export, transfer, or trade is within category I of the MTCR
Annex, then the President shall deny, for a period of not less than 2 years—
(i) all United States Government contracts
with such foreign person; and
(ii) licenses for the transfer to such foreign
person of all items on the United States Munitions List.
(C) If, in addition to actions taken under
subparagraphs (A) and (B), the President determines that the export, transfer, or trade
has substantially contributed to the design,
development, or production of missiles in a
country that is not an MTCR adherent, then
the President shall prohibit, for a period of
not less than 2 years, the importation into the
United States of products produced by that
foreign person.
(b) Inapplicability with respect to MTCR adherents
(1) In general
Except as provided in paragraph (2), subsection (a) of this section does not apply with
respect to—
(A) any export, transfer, or trading activity
that is authorized by the laws of an MTCR adherent, if such authorization is not obtained
by misrepresentation or fraud; or
(B) any export, transfer, or trade of an item
to an end user in a country that is an MTCR
adherent.
(2) Limitation
Notwithstanding paragraph (1), subsection
(a) of this section shall apply to an entity subordinate to a government that engages in ex-
Page 1058
ports or transfers described in section
2295a(b)(3)(A) of this title.
(c) Effect of enforcement actions by MTCR adherents
Sanctions set forth in subsection (a) of this
section may not be imposed under this section
on a person with respect to acts described in
such subsection or, if such sanctions are in effect against a person on account of such acts,
such sanctions shall be terminated, if an MTCR
adherent is taking judicial or other enforcement
action against that person with respect to such
acts, or that person has been found by the government of an MTCR adherent to be innocent of
wrongdoing with respect to such acts, and if the
President certifies to the Committee on Foreign
Relations of the Senate and the Committee on
International Relations of the House of Representatives that—
(1) for any judicial or other enforcement action taken by the MTCR adherent, such action
has—
(A) been comprehensive; and
(B) been performed to the satisfaction of
the United States; and
(2) with respect to any finding of innocence
of wrongdoing, the United States is satisfied
with the basis for such finding.
(d) Advisory opinions
The Secretary of State, in consultation with
the Secretary of Defense and the Secretary of
Commerce, may, upon the request of any person,
issue an advisory opinion to that person as to
whether a proposed activity by that person
would subject that person to sanctions under
this section. Any person who relies in good faith
on such an advisory opinion which states that
the proposed activity would not subject a person
to such sanctions, and any person who thereafter engages in such activity, may not be made
subject to such sanctions on account of such activity.
(e) Waiver and report to Congress
(1) In any case other than one in which an advisory opinion has been issued under subsection
(d) of this section stating that a proposed activity would not subject a person to sanctions
under this section, the President may waive the
application of subsection (a) of this section to a
foreign person if the President determines that
such waiver is essential to the national security
of the United States.
(2) In the event that the President decides to
apply the waiver described in paragraph (1), the
President shall so notify the Committee on
Armed Services and the Committee on Foreign
Relations of the Senate and the Committee on
National Security and the Committee on International Relations of the House of Representatives not less than 45 working days before issuing the waiver. Such notification shall include a
report fully articulating the rationale and circumstances which led the President to apply the
waiver.
(f) Presumption
In determining whether to apply sanctions
under subsection (a) of this section to a foreign
person involved in the export, transfer, or trade
Page 1059
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
of an item on the MTCR Annex, it should be a
rebuttable presumption that such item is designed for use in a missile listed in the MTCR
Annex if the President determines that the final
destination of the item is a country the government of which the Secretary of State has determined, for purposes of 2405(j)(1)(A) 2 of title 50,
Appendix, has repeatedly provided support for
acts of international terrorism.
(g) Additional waiver
The President may waive the imposition of
sanctions under paragraph (1) on a person with
respect to a product or service if the President
certifies to the Congress that—
(1) the product or service is essential to the
national security of the United States; and
(2) such person is a sole source supplier of
the product or service, the product or service
is not available from any alternative reliable
supplier, and the need for the product or service cannot be met in a timely manner by improved manufacturing processes or technological developments.
(h) Exceptions
The President shall not apply the sanction
under this section prohibiting the importation
of the products of a foreign person—
(1) in the case of procurement of defense articles or defense services—
(A) under existing contracts or subcontracts, including the exercise of options
for production quantities to satisfy requirements essential to the national security of
the United States;
(B) if the President determines that the
person to which the sanctions would be applied is a sole source supplier of the defense
articles and services, that the defense articles or services are essential to the national
security of the United States, and that alternative sources are not readily or reasonably
available; or
(C) if the President determines that such
articles or services are essential to the national security of the United States under
defense coproduction agreements or NATO
Programs of Cooperation;
(2) to products or services provided under
contracts entered into before the date on
which the President publishes his intention to
impose the sanctions; or
(3) to—
(A) spare parts,
(B) component parts, but not finished
products, essential to United States products or production,
(C) routine services and maintenance of
products, to the extent that alternative
sources are not readily or reasonably available, or
(D) information and technology essential
to United States products or production.
(Pub. L. 90–629, ch. 7, § 73, as added Pub. L.
101–510, div. A, title XVII, § 1703, Nov. 5, 1990, 104
Stat. 1746; amended Pub. L. 102–138, title III,
§ 323(a), Oct. 28, 1991, 105 Stat. 711; Pub. L.
103–236, title VII, §§ 714(a)(7), 734(b), Apr. 30, 1994,
2 So
in original. Probably should be preceded by ‘‘section’’.
§ 2797b
108 Stat. 497, 505; Pub. L. 104–106, div. A, title
XIV, § 1408(d), Feb. 10, 1996, 110 Stat. 494; Pub. L.
105–277, div. G, subdiv. A, title XII, § 1225(a)(8),
Oct. 21, 1998, 112 Stat. 2681–773; Pub. L. 106–113,
div. B, § 1000(a)(7) [div. B, title XI, § 1136(b), (c)],
Nov. 29, 1999, 113 Stat. 1536, 1501A–495.)
REFERENCES IN TEXT
Subsections (f) and (g) of this section, referred to in
subsec. (a)(1), were redesignated subsecs. (g) and (h), respectively, by Pub. L. 103–236, title VII, § 734(b)(1), Apr.
30, 1994, 108 Stat. 505.
This chapter, referred to in subsec. (a)(1)(A),
(2)(A)(ii), 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.
AMENDMENTS
1999—Subsec. (b). Pub. L. 106–113, § 1000(a)(7) [title XI,
§ 1136(b)], designated existing provisions as par. (1), inserted par. heading, in introductory provisions, substituted ‘‘Except as provided in paragraph (2), subsection (a)’’ for ‘‘Subsection (a)’’, redesignated former
pars. (1) and (2) as subpars. (A) and (B), respectively,
and added par. (2).
Subsec. (c). Pub. L. 106–113, § 1000(a)(7) [title XI,
§ 1136(c)], inserted before period at end ‘‘, and if the
President certifies to the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives
that—
‘‘(1) for any judicial or other enforcement action
taken by the MTCR adherent, such action has—
‘‘(A) been comprehensive; and
‘‘(B) been performed to the satisfaction of the
United States; and
‘‘(2) with respect to any finding of innocence of
wrongdoing, the United States is satisfied with the
basis for such finding’’.
1998—Subsec. (d). Pub. L. 105–277 substituted ‘‘and the
Secretary of Commerce’’ for ‘‘, the Secretary of Commerce, and the Director of the United States Arms Control and Disarmament Agency’’.
1996—Subsec. (e)(2). Pub. L. 104–106 substituted ‘‘the
Committee on Armed Services and the Committee on
Foreign Relations of the Senate and the Committee on
National Security and the Committee on International
Relations of the House of Representatives’’ for ‘‘the
Congress’’ and ‘‘45 working days’’ for ‘‘20 working
days’’.
1994—Subsec. (d). Pub. L. 103–236, § 714(a)(7), substituted ‘‘, the Secretary of Commerce, and the Director of the United States Arms Control and Disarmament Agency,’’ for ‘‘and the Secretary of Commerce,’’.
Subsecs. (f) to (h). Pub. L. 103–236, § 734(b), added subsec. (f) and redesignated former subsecs. (f) and (g) as
(g) and (h), respectively.
1991—Subsec. (a)(1)(A). Pub. L. 102–138 inserted ‘‘acquisition,’’ before ‘‘design,’’.
CHANGE OF NAME
Committee on National Security of House of Representatives changed to Committee on Armed Services
of House of Representatives by House Resolution No. 5,
One Hundred Sixth Congress, Jan. 6, 1999.
Committee on International Relations of House of
Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution
No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
EFFECTIVE DATE OF 1998 AMENDMENT
Amendment by Pub. L. 105–277 effective Apr. 1, 1999,
see section 1201 of Pub. L. 105–277, set out as an Effective Date note under section 6511 of this title.
DELEGATION OF FUNCTIONS
For delegation of certain functions of the President
under this section, see Ex. Ord. No. 12851, § 2(a), June 11,
§ 2797b–1
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
Page 1060
1993, 58 F.R. 33181, set out as a note under section 2797
of this title.
§ 2797b–1. Notification of admittance of MTCR
adherents
SPACE COOPERATION WITH RUSSIAN PERSONS
(a) Policy report
Following any action by the United States
that results in a country becoming a MTCR adherent, the President shall transmit promptly
to the Congress a report which describes the rationale for such action, together with an assessment of that country’s nonproliferation policies,
practices, and commitments. Such report shall
also include the text of any agreements or understandings between the United States and
such country regarding the terms and conditions
of the country’s adherence to the MTCR.
(b) Intelligence assessment report
At such times that a report is transmitted
pursuant to subsection (a) of this section, the
Director of Central Intelligence shall promptly
prepare and submit to the Congress a separate
report containing any credible information indicating that the country described in subsection
(a) of this section has engaged in any activity
identified under subparagraph (A), (B), or (C) of
section 2797b(a)(1) of this title within the previous two years.
Pub. L. 106–280, title VII, § 708, Oct. 6, 2000, 114 Stat.
862, as amended by Pub. L. 109–112, § 4(e)(2), Nov. 22,
2005, 119 Stat. 2370, provided that:
‘‘(a) ANNUAL CERTIFICATION.—
‘‘(1) REQUIREMENT.—The President shall submit
each year to the appropriate committees of Congress
[Committee on Foreign Relations of the Senate and
Committee on Foreign Affairs of the House of Representatives], with respect to each Russian person described in paragraph (2), a certification that the reports required to be submitted to Congress during the
preceding calendar year under section 2 of the Iran
and Syria Nonproliferation Act (Public Law 106–178)
[now Iran, North Korea, and Syria Nonproliferation
Act] [50 U.S.C. 1701 note] do not identify that person
on account of a transfer to Iran of goods, services, or
technology described in section 2(a)(1)(B) of such Act.
‘‘(2) APPLICABILITY.—The certification requirement
under paragraph (1) applies with respect to each Russian person that, as of the date of the certification,
is a party to an agreement relating to commercial cooperation on MTCR equipment or technology with a
United States person pursuant to an arms export license that was issued at any time since January 1,
2000.
‘‘(3) EXEMPTION.—No activity or transfer which specifically has been the subject of a Presidential determination pursuant to section 5(a)(1), (2), or (3) of the
Iran and Syria Nonproliferation Act (Public Law
106–178) [now Iran, North Korea, and Syria Nonproliferation Act] [50 U.S.C. 1701 note] shall cause a
Russian person to be considered as having been identified in the reports submitted during the preceding
calendar year under section 2 of that Act for the purposes of the certification required under paragraph
(1).
‘‘(4) COMMENCEMENT AND TERMINATION OF REQUIREMENT.—
‘‘(A) TIMES FOR SUBMISSION.—The President shall
submit—
‘‘(i) the first certification under paragraph (1)
not later than 60 days after the date of the enactment of this Act [Oct. 6, 2000]; and
‘‘(ii) each annual certification thereafter on the
anniversary of the first submission.
‘‘(B) TERMINATION OF REQUIREMENT.—No certification is required under paragraph (1) after termination of cooperation under the specific license, or
5 years after the date on which the first certification is submitted, whichever is the earlier date.
‘‘(b) TERMINATION OF EXISTING LICENSES.—If, at any
time after the issuance of a license under section 36(c)
of the Arms Export Control Act [22 U.S.C. 2776(c)] relating to the use, development, or co-production of commercial rocket engine technology with a foreign person, the President determines that the foreign person
has engaged in any action described in section 73(a)(1)
of the Arms Export Control Act (22 U.S.C. 2797b(a)(1))
since the date the license was issued, the President
may terminate the license.
‘‘(c) REPORT ON EXPORT LICENSING OF MTCR ITEMS
UNDER $50,000,000.—[Amended section 2797 of this title.]
‘‘(d) DEFINITIONS.—In this section:
‘‘(1) FOREIGN PERSON.—The term ‘foreign person’
has the meaning given the term in section 74(7) of the
Arms Export Control Act (22 U.S.C. 2797c(7)).
‘‘(2) MTCR EQUIPMENT OR TECHNOLOGY.—The term
‘MTCR equipment or technology’ has the meaning
given the term in section 74(5) of the Arms Export
Control Act (22 U.S.C. 2797c(5)).
‘‘(3) PERSON.—The term ‘person’ has the meaning
given the term in section 74(8) of the Arms Export
Control Act (22 U.S.C. 2797c(8)).
‘‘(4) UNITED STATES PERSON.—The term ‘United
States person’ has the meaning given the term in section 74(6) of the Arms Export Control Act (22 U.S.C.
2797c(6)).’’
(Pub. L. 90–629, ch. 7, § 73A, as added Pub. L.
103–236, title VII, § 735(d), Apr. 30, 1994, 108 Stat.
506; amended Pub. L. 106–113, div. B, § 1000(a)(7)
[div. B, title XI, § 1136(d)], Nov. 29, 1999, 113 Stat.
1536, 1501A–496.)
AMENDMENTS
1999—Pub. L. 106–113 designated existing provisions as
subsec. (a), inserted heading, and added subsec. (b).
CHANGE OF NAME
Reference to the Director of Central Intelligence or
the Director of the Central Intelligence Agency in the
Director’s capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of
the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108–458, set out as
a note under section 401 of Title 50, War and National
Defense.
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of State by Memorandum of President of
the United States, July 26, 1994, 59 F.R. 40205, set out as
a note under section 2370a of this title.
§ 2797b–2. Authority relating to MTCR adherents
Notwithstanding section 2797b(b) of this title,
the President may take the actions under section 2797b(a)(2) of this title under the circumstances described in section 2797c(b)(2) of this
title.
(Pub. L. 90–629, ch. 7, § 73B, as added Pub. L.
106–113, div. B, § 1000(a)(7) [div. B, title XI, § 1137],
Nov. 29, 1999, 113 Stat. 1536, 1501A–496).
§ 2797c. Definitions
(a) In general
For purposes of this subchapter—
(1) the term ‘‘missile’’ means a category I
system as defined in the MTCR Annex, and
Page 1061
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
any other unmanned delivery system of similar capability, as well as the specially designed production facilities for these systems;
(2) the term ‘‘Missile Technology Control
Regime’’ or ‘‘MTCR’’ means the policy statement, between the United States, the United
Kingdom, the Federal Republic of Germany,
France, Italy, Canada, and Japan, announced
on April 16, 1987, to restrict sensitive missilerelevant transfers based on the MTCR Annex,
and any amendments thereto;
(3) the term ‘‘MTCR adherent’’ means a
country that participates in the MTCR or
that, pursuant to an international 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;
(4) the term ‘‘MTCR Annex’’ means the
Guidelines and Equipment and Technology
Annex of the MTCR, and any amendments
thereto;
(5) the terms ‘‘missile equipment or technology’’ and ‘‘MTCR equipment or technology’’ mean those items listed in category I
or category II of the MTCR Annex;
(6) the term ‘‘United States person’’ has the
meaning given that term in section 2415(2) of
title 50, Appendix;
(7) the term ‘‘foreign person’’ means any person other than a United States person;
(8)(A) the term ‘‘person’’ means a natural
person as well as a corporation, business association, partnership, society, trust, any other
nongovernmental entity, organization, or
group, and any governmental entity operating
as a business enterprise, and any successor of
any such entity; and
(B) in the case of countries with non-market
economies (excluding former members of the
Warsaw Pact), the term ‘‘person’’ means—
(i) all activities of that government relating to the development or production of any
missile equipment or technology; and
(ii) all activities of that government affecting the development or production of
electronics, space systems or equipment, and
military aircraft; and
(9) the term ‘‘otherwise engaged in the trade
of’’ means, with respect to a particular export
or transfer, to be a freight forwarder or designated exporting agent, or a consignee or end
user of the item to be exported or transferred.
(b) International understanding defined
For purposes of subsection (a)(3) of this section, as it relates to any international understanding concluded with the United States after
January 1, 2000, the term ‘‘international understanding’’ means—
(1) any specific agreement by a country not
to export, transfer, or otherwise engage in the
trade of any MTCR equipment or technology
that contributes to the acquisition, design, development, or production of missiles in a
country that is not an MTCR adherent and
would be, if it were United States-origin
equipment or technology, subject to the jurisdiction of the United States under this chapter; or
(2) any specific understanding by a country
that, notwithstanding section 2797b(b) of this
§ 2798
title, the United States retains the right to
take the actions under section 2797b(a)(2) of
this title in the case of any export or transfer
of any MTCR equipment or technology that
contributes to the acquisition, design, development, or production of missiles in a country
that is not an MTCR adherent and would be, if
it were United States-origin equipment or
technology, subject to the jurisdiction of the
United States under this chapter.
(Pub. L. 90–629, ch. 7, § 74, as added Pub. L.
101–510, div. A, title XVII, § 1703, Nov. 5, 1990, 104
Stat. 1748; amended Pub. L. 102–138, title III,
§ 323(b), (c), Oct. 28, 1991, 105 Stat. 711; Pub. L.
106–113, div. B, § 1000(a)(7) [div. B, title XI,
§ 1136(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A–495.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (b), 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.
AMENDMENTS
1999—Pub. L. 106–113 designated existing provisions as
subsec. (a), inserted heading, and added subsec. (b).
1991—Par. (8)(B). Pub. L. 102–138, § 323(b), substituted
‘‘countries with non-market economies (excluding
former members of the Warsaw Pact)’’ for ‘‘countries
where it may be impossible to identify a specific governmental entity referred to in subparagraph (A)’’.
Par. (8)(B)(ii). Pub. L. 102–138, § 323(c), substituted
‘‘electronics, space systems or equipment, and military
aircraft’’ for ‘‘aircraft, electronics, and space systems
or equipment’’.
SUBCHAPTER VIII—CHEMICAL OR
BIOLOGICAL WEAPONS PROLIFERATION
§ 2798. Sanctions against certain foreign persons
(a) Imposition of sanctions
(1) Determination by the President
Except as provided in subsection (b)(2) of
this section, the President shall impose both
of the sanctions described in subsection (c) of
this section if the President determines that a
foreign person, on or after October 28, 1991, has
knowingly and materially contributed—
(A) through the export from the United
States of any goods or technology that are
subject to the jurisdiction of the United
States,
(B) through the export from any other
country of any goods or technology that
would be, if they were United States goods
or technology, subject to the jurisdiction of
the United States, or
(C) through any other transaction not subject to sanctions pursuant to the Export Administration Act of 1979 [50 U.S.C. App. 2401
et seq.],
to the efforts by any foreign country, project,
or entity described in paragraph (2) to use, develop, produce, stockpile, or otherwise acquire
chemical or biological weapons.
(2) Countries, projects, or entities receiving assistance
Paragraph (1) applies in the case of—
(A) any foreign country that the President
determines has, at any time after January 1,
1980—
§ 2798
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(i) used chemical or biological weapons
in violation of international law;
(ii) used lethal chemical or biological
weapons against its own nationals; or
(iii) made substantial preparations to engage in the activities described in clause
(i) or (ii);
(B) any foreign country whose government
is determined for purposes of section 6(j) of
the Export Administration Act of 1979 [50
U.S.C. App. 2405(j)] to be a government that
has repeatedly provided support for acts of
international terrorism; or
(C) any other foreign country, project, or
entity designated by the President for purposes of this section.
(3) Persons against whom sanctions are to be
imposed
Sanctions shall be imposed pursuant to
paragraph (1) on—
(A) the foreign person with respect to
which the President makes the determination described in that paragraph;
(B) any successor entity to that foreign
person;
(C) any foreign person that is a parent or
subsidiary of that foreign person if that parent or subsidiary knowingly assisted in the
activities which were the basis of that determination; and
(D) any foreign person that is an affiliate
of that foreign person if that affiliate knowingly assisted in the activities which were
the basis of that determination and if that
affiliate is controlled in fact by that foreign
person.
(b) Consultations with and actions by foreign
government of jurisdiction
(1) Consultations
If the President makes the determinations
described in subsection (a)(1) of this section
with respect to a foreign person, the Congress
urges the President to initiate consultations
immediately with the government with primary jurisdiction over that foreign person
with respect to the imposition of sanctions
pursuant to this section.
(2) Actions by government of jurisdiction
In order to pursue such consultations with
that government, the President may delay imposition of sanctions pursuant to this section
for a period of up to 90 days. Following these
consultations, the President shall impose
sanctions unless the President determines and
certifies to the Congress that that government
has taken specific and effective actions, including appropriate penalties, to terminate
the involvement of the foreign person in the
activities described in subsection (a)(1) of this
section. The President may delay imposition
of sanctions for an additional period of up to
90 days if the President determines and certifies to the Congress that that government is
in the process of taking the actions described
in the preceding sentence.
(3) Report to Congress
The President shall report to the Congress,
not later than 90 days after making a deter-
Page 1062
mination under subsection (a)(1) of this section, on the status of consultations with the
appropriate government under this subsection,
and the basis for any determination under
paragraph (2) of this subsection that such government has taken specific corrective actions.
(c) Sanctions
(1) Description of sanctions
The sanctions to be imposed pursuant to
subsection (a)(1) of this section are, except as
provided in paragraph (2) of this subsection,
the following:
(A) Procurement sanction
The United States Government shall not
procure, or enter into any contract for the
procurement of, any goods or services from
any person described in subsection (a)(3) of
this section.
(B) Import sanctions
The importation into the United States of
products produced by any person described
in subsection (a)(3) of this section shall be
prohibited.
(2) Exceptions
The President shall not be required to apply
or maintain sanctions under this section—
(A) in the case of procurement of defense
articles or defense services—
(i) under existing contracts or subcontracts, including the exercise of options for production quantities to satisfy
United States operational military requirements;
(ii) if the President determines that the
person or other entity to which the sanctions would otherwise be applied is a sole
source supplier of the defense articles or
services, that the defense articles or services are essential, and that alternative
sources are not readily or reasonably
available; or
(iii) if the President determines that
such articles or services are essential to
the national security under defense coproduction agreements;
(B) to products or services provided under
contracts entered into before the date on
which the President publishes his intention
to impose sanctions;
(C) to—
(i) spare parts,
(ii) component parts, but not finished
products, essential to United States products or production, or
(iii) routine servicing and maintenance
of products, to the extent that alternative
sources are not readily or reasonably
available;
(D) to information and technology essential to United States products or production;
or
(E) to medical or other humanitarian
items.
(d) Termination of sanctions
The sanctions imposed pursuant to this section shall apply for a period of at least 12
Page 1063
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
months following the imposition of sanctions
and shall cease to apply thereafter only if the
President determines and certifies to the Congress that reliable information indicates that
the foreign person with respect to which the determination was made under subsection (a)(1) of
this section has ceased to aid or abet any foreign government, project, or entity in its efforts
to acquire chemical or biological weapons capability as described in that subsection.
(e) Waiver
(1) Criterion for waiver
The President may waive the application of
any sanction imposed on any person pursuant
to this section, after the end of the 12-month
period beginning on the date on which that
sanction was imposed on that person, if the
President determines and certifies to the Congress that such waiver is important to the national security interests of the United States.
(2) Notification of and report to Congress
If the President decides to exercise the waiver authority provided in paragraph (1), the
President shall so notify the Congress not less
than 20 days before the waiver takes effect.
Such notification shall include a report fully
articulating the rationale and circumstances
which led the President to exercise the waiver
authority.
(f) ‘‘Foreign person’’ defined
For the purposes of this section, the term
‘‘foreign person’’ means—
(1) an individual who is not a citizen of the
United States or an alien admitted for permanent residence to the United States; or
(2) a corporation, partnership, or other entity which is created or organized under the
laws of a foreign country or which has its principal place of business outside the United
States.
(Pub. L. 90–629, ch. 8, § 81, as added and amended
Pub. L. 102–182, title III, §§ 305(b), 309(b)(2), Dec.
4, 1991, 105 Stat. 1250, 1258.)
REFERENCES IN TEXT
The Export Administration Act of 1979, referred to in
subsec. (a)(1)(C), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat.
503, as amended, which is classified principally to section 2401 et seq. of the Appendix to Title 50, War and
National Defense. For complete classification of this
Act to the Code, see Short Title note set out under section 2401 of the Appendix to Title 50 and Tables.
PRIOR PROVISIONS
A prior subchapter VIII, consisting of former section
2798, as added by Pub. L. 102–138, title V, § 505(b), Oct.
28, 1991, 105 Stat. 727, was substantially identical to
subchapter VIII, as added by section 305(b) of Pub. L.
102–182, prior to repeal by Pub. L. 102–182, title III,
§ 309(a), Dec. 4, 1991, 105 Stat. 1258.
AMENDMENTS
1991—Subsec. (a)(1). Pub. L. 101–182, § 309(b)(2), substituted ‘‘October 28, 1991’’ for reference to the ‘‘date of
the enactment of this section’’ which was enacted Dec.
4, 1991.
DELEGATION OF FUNCTIONS
For delegation of certain functions of the President
under this section, see Ex. Ord. No. 12851, § 1(a), June 11,
§ 2799b
1993, 58 F.R. 33181, set out as a note under section 2797
of this title.
SUBCHAPTER IX—TRANSFER OF CERTAIN
CFE TREATY-LIMITED EQUIPMENT TO
NATO MEMBERS
§ 2799. Purpose
The purpose of this subchapter is to authorize
the President to support, consistent with the
CFE Treaty, a NATO equipment transfer program that will—
(1) enhance NATO’s forces,
(2) increase NATO standardization and interoperability, and
(3) better distribute defense burdens within
the NATO alliance.
(Pub. L. 90–629, ch. 9, § 91, as added Pub. L.
102–228, § 2, Dec. 12, 1991, 105 Stat. 1691.)
§ 2799a. CFE Treaty obligations
The authorities provided in this subchapter
shall be exercised consistent with the obligations incurred by the United States in connection with the CFE Treaty.
(Pub. L. 90–629, ch. 9, § 92, as added Pub. L.
102–228, § 2, Dec. 12, 1991, 105 Stat. 1691.)
§ 2799b. Authorities
(a) General authority
The President may transfer to any NATO/CFE
country, in accordance with NATO plans, defense articles—
(1) that are battle tanks, armoured combat
vehicles, or artillery included within the CFE
Treaty’s definition of ‘‘conventional armaments and equipment limited by the Treaty’’;
(2) that were, as of the date of signature of
the CFE Treaty, in the stocks of the Department of Defense and located in the CFE Treaty’s area of application; and
(3) that the President determines are not
needed by United States military forces within the CFE Treaty’s area of application.
(b) Acceptance of NATO assistance in eliminating direct costs of transfers
In order to eliminate direct costs of facilitating transfers of defense articles under subsection (a) of this section, the United States
may utilize services provided by NATO or any
NATO/CFE country, including inspection, repair, or transportation services with respect to
defense articles so transferred.
(c) Acceptance of NATO assistance in meeting
certain United States obligations
In order to facilitate United States compliance with the CFE Treaty-mandated obligations
for destruction of conventional armaments and
equipment limited by the CFE Treaty, the
United States may utilize services or funds provided by NATO or any NATO/CFE country.
(d) Authority to transfer on grant basis
Defense articles may be transferred under subsection (a) of this section without cost to the recipient country.
(e) Third country transfers restrictions
For purposes of sections 2753(a)(2), 2753(a)(3),
2753(c), and 2753(d) of this title, defense articles
§ 2799c
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
Page 1064
transferred under subsection (a) of this section
shall be deemed to have been sold under this
chapter.
(f) Maintenance of military balance in Eastern
Mediterranean
The President shall ensure that transfers by
the United States under subsection (a) of this
section, taken together with transfers by other
NATO/CFE countries in implementing the CFE
Treaty, are of such valuations so as to be consistent with the United States policy, embodied
in section 2373 of this title, of maintaining the
military balance in the Eastern Mediterranean.
(g) Expiration of authority
(1) In general
Except as provided in paragraph (2), the authority of subsection (a) of this section expires
at the end of the 40-month period beginning on
the date on which the CFE Treaty enters into
force.
(2) Transition rule
Paragraph (1) does not apply with respect to
a transfer of defense articles for which notification under section 2799c(a) of this title is
submitted before the end of the period described in that paragraph.
Foreign Affairs and the Committee on Armed
Services of the House of Representatives and the
Committee on Foreign Relations and the Committee on Armed Services of the Senate a report
that—
(1) lists all transfers made to each recipient
NATO/CFE country by the United States
under section 2799b(a) of this title during the
preceding calendar year;
(2) describes how those transfers further the
purposes described in paragraphs (1) through
(3) of section 2799 of this title; and
(3) lists, on a country-by-country basis, all
transfers to another country of conventional
armaments and equipment limited by the CFE
Treaty—
(A) by each NATO/CFE country (other
than the United States) in implementing the
CFE Treaty, and
(B) by each country of the Eastern Group
of States Parties in implementing the CFE
Treaty.
(Pub. L. 90–629, ch. 9, § 93, as added Pub. L.
102–228, § 2, Dec. 12, 1991, 105 Stat. 1691.)
1993—Subsec. (b)(3)(B). Pub. L. 103–199 substituted
‘‘country of the Eastern Group of States Parties’’ for
‘‘Warsaw Pact country’’.
REFERENCES IN TEXT
This chapter, referred to in subsec. (e), 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.
DELEGATION OF FUNCTIONS
Memorandum of President of the United States, Feb.
13, 1992, 57 F.R. 6663, provided:
Memorandum for the Secretary of State and the Secretary of Defense
By virtue of the authority vested in me by the Constitution and laws of the United States of America, including section 301 of title 3 of the United States Code,
I hereby delegate to the Secretary of Defense the functions vested in me by section 93(a) and section 94 of the
Arms Export Control Act, as amended (the ‘‘Act’’) [22
U.S.C. 2799b(a), 2799c], and to the Secretary of State the
functions vested in me by section 93(f) of the Act. Consistent with section 2 of the Act [22 U.S.C. 2752], transfers of defense articles under section 93(a) shall be subject to the policy direction of the Secretary of State,
including the determination of whether such transfers
shall occur.
The Secretary of State is authorized and directed to
publish this memorandum in the Federal Register.
GEORGE BUSH.
§ 2799c. Notifications and reports to Congress
(a) Notifications
Not less than 15 days before transferring any
defense articles pursuant to section 2799b(a) of
this title, the President shall notify the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate in accordance with the
procedures applicable to reprogramming notifications pursuant to section 2394–1 of this title.
(b) Annual reports
Not later than February 1 each year, the
President shall submit to the Committee on
(Pub. L. 90–629, ch. 9, § 94, as added Pub. L.
102–228, § 2, Dec. 12, 1991, 105 Stat. 1692; amended
Pub. L. 103–199, title IV, § 402(1), Dec. 17, 1993, 107
Stat. 2324.)
AMENDMENTS
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Secretary of Defense by Memorandum of President
of the United States, Feb. 13, 1992, 57 F.R. 6663, set out
as a note under section 2799b of this title.
§ 2799d. Definitions
As used in this subchapter—
(1) the term ‘‘CFE Treaty’’ means the Treaty
on Conventional Armed Forces in Europe
(signed at Paris, November 19, 1990);
(2) the term ‘‘conventional armaments and
equipment limited by the CFE Treaty’’ has
the same meaning as the term ‘‘conventional
armaments and equipment limited by the
Treaty’’ does under paragraph 1(J) of article II
of the CFE Treaty;
(3) the term ‘‘NATO’’ means the North Atlantic Treaty Organization;
(4) the term ‘‘NATO/CFE country’’ means a
member country of NATO that is a party to
the CFE Treaty and is listed in paragraph 1(A)
of article II of the CFE Treaty within the
group of States Parties that signed or acceded
to the Treaty of Brussels of 1948 or the Treaty
of Washington of 1949 (the North Atlantic
Treaty); and
(5) the term ‘‘country of the Eastern Group
of States Parties’’ means a country that is
listed in paragraph 1(A) of article II of the
CFE Treaty within the group of States Parties
that signed the Treaty of Warsaw of 1955 or a
successor state to such a country.
(Pub. L. 90–629, ch. 9, § 95, as added Pub. L.
102–228, § 2, Dec. 12, 1991, 105 Stat. 1693; amended
Pub. L. 103–199, title IV, § 402(2), Dec. 17, 1993, 107
Stat. 2324.)
AMENDMENTS
1993—Par. (5). Pub. L. 103–199 substituted ‘‘country of
the Eastern Group of States Parties’’ for ‘‘Warsaw Pact
Page 1065
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
country’’ and inserted before period at end ‘‘or a successor state to such a country’’.
SUBCHAPTER X—NUCLEAR
NONPROLIFERATION CONTROLS
§ 2799aa. Nuclear enrichment transfers
(a) Prohibitions; safeguards and management
Except as provided in subsection (b) of this
section, 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 delivers nuclear enrichment 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, unless before such delivery—
(1) the supplying country and receiving
country have reached agreement to place all
such equipment, materials, or technology,
upon delivery, under multilateral auspices and
management when available; and
(2) the recipient country has entered into an
agreement with the International Atomic Energy Agency to place all such equipment, materials, technology, and all nuclear fuel and
facilities in such country under the safeguards
system of such Agency.
(b) Certification by President of necessity of continued assistance; disapproval by Congress
(1) Notwithstanding subsection (a) of this section, the President may furnish assistance
which would otherwise be prohibited under such
subsection 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—
(A) the termination of such assistance would
have a serious adverse effect on vital United
States interests; and
(B) he has received reliable assurances that
the country in question will not acquire or develop nuclear weapons or assist other nations
in doing so.
Such certification shall set forth the reasons
supporting such determination in each particular case.
(2)(A) A certification under paragraph (1) of
this subsection shall take effect on the date on
which the certification is received by the Congress. However, if, within thirty 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
§ 2799aa–1
with the provisions of section 601(b) of the International Security Assistance and Arms Export
Control Act of 1976.
(Pub. L. 90–629, ch. 10, § 101, as added Pub. L.
103–236, title VIII, § 826(a), Apr. 30, 1994, 108 Stat.
515.)
REFERENCES IN TEXT
The Foreign Assistance Act of 1961, referred to in subsec. (a), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, as
amended, 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 subsec. (a), 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 subsec. (b)(2)(B), is section 601(b) of Pub. L. 94–329,
title VI, June 30, 1976, 90 Stat. 765, which is not classified to the Code.
REFERENCES TO SECTIONS 2429 AND 2429a OF THIS
TITLE DEEMED TO BE REFERENCES TO SECTIONS
2799aa AND 2799aa–1 OF THIS TITLE
Section 826(c) of Pub. L. 103–236 provided that: ‘‘Any
reference in law as of the date of enactment of this Act
[Apr. 30, 1994] to section 669 or 670 of the Foreign Assistance Act of 1961 [former 22 U.S.C. 2429, 2429a] shall,
after such date, be deemed to be a reference to section
101 or 102, as the case may be, of the Arms Export Control Act [22 U.S.C. 2799aa, 2799aa–1].’’
EFFECTIVE DATE
Subchapter 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 SANCTIONS
Sanctions contained in this section waived in certain
regards with respect to India by Determination of
President of the United States, No. 2000–18, Mar. 16,
2000, 65 F.R. 16297, set out as a note under section
2799aa–1 of this title.
Sanctions contained in this section waived in certain
regards with respect to India and Pakistan by Determination of President of the United States, No. 2000–4,
Oct. 27, 1999, 64 F.R. 60649, set out as a note under section 2799aa–1 of this title.
§ 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
§ 2799aa–1
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
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 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,
Page 1066
(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. 413 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.
Page 1067
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
(G) The authorities of section 2405 of title 50,
Appendix, 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. 413 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
ll a certification by the President under section 102(b)(4) of the Arms Export Control Act
with respect to ll, 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
§ 2799aa–1
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 ‘‘nonnuclear-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.
(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.)
REFERENCES IN TEXT
The 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, as amended, 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
§ 2799aa–1
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
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, as amended, referred to in subsec. (b)(2)(D)(i), (G), is act July 26, 1947,
ch. 343, 61 Stat. 495, as amended. Title V of the Act is
classified generally to subchapter III (§ 413 et seq.) of
chapter 15 of Title 50, War and National Defense. For
complete classification of this Act to the Code, see
Short Title note set out under section 401 of Title 50
and Tables.
Section 102 of the Arms Export Control Act, referred
to in subsec. (b)(4)(D), is classified to this section.
AMENDMENTS
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.
CHANGE OF NAME
Committee 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.’’
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.
WAIVER OF CERTAIN SANCTIONS AGAINST NORTH KOREA
Pub. L. 110–252, title I, § 1405, June 30, 2008, 122 Stat.
2337, 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
Page 1068
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) NOTIFICATIONS AND REPORTS.—
‘‘(1) CONGRESSIONAL NOTIFICATION.—The President
shall notify the appropriate congressional committees in writing not later than 15 days before exercising the waiver authority under subsection (a).
‘‘(2) ANNUAL REPORT.—Not later than January 31,
2009, and annually thereafter, the President shall submit to the appropriate congressional committees a
report that—
‘‘(A) lists all waivers issued under subsection (a)
during the preceding year;
‘‘(B) describes in detail the progress that is being
made in the implementation of the commitment
undertaken by North Korea, 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;
‘‘(C) discusses specifically any shortcomings in
the implementation by North Korea of that commitment; and
‘‘(D) lists and describes the progress and shortcomings, in the preceding year, of all other programs promoting the elimination of the capability
of North Korea to develop, deploy, transfer, or
maintain weapons of mass destruction or their delivery systems.
‘‘(3) REPORT ON VERIFICATION MEASURES RELATING TO
NORTH KOREA’S NUCLEAR PROGRAMS.—
‘‘(A) IN GENERAL.—Not later than 15 days after the
date of enactment of this Act [June 30, 2008], the
Secretary of State shall submit to the appropriate
congressional committees a report on verification
measures relating to North Korea’s nuclear programs under the Six-Party Talks Agreement of
February 13, 2007, with specific focus on how such
verification measures are defined under the SixParty Talks Agreement and understood by the
United States Government.
‘‘(B) MATTERS TO BE INCLUDED.—The report required under subsection (A) shall include, among
other elements, a description of—
‘‘(i) how the United States will confirm that
North Korea has ‘provided a complete and correct
declaration of all of its nuclear programs’;
‘‘(ii) how the United States will maintain a high
and ongoing level of confidence that North Korea
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TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
has fully met the terms of the Six-Party Talks
Agreement relating to its nuclear programs;
‘‘(iii) any diplomatic agreement with North
Korea regarding verification measures relating to
North Korea’s nuclear programs under the SixParty Talks Agreement (other than implementing arrangements made during on-site operations); and
‘‘(iv) any significant and continuing disagreement with North Korea regarding verification
measures relating to North Korea’s nuclear programs under the Six-Party Talks Agreement.
‘‘(C) FORM.—The report required under subsection
(A) shall be submitted in unclassified form, but
may include a classified annex.
‘‘(d) 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.’’
EXEMPTION FOR RHINOCEROS, TIGER, ASIAN ELEPHANT,
AND GREAT APE CONSERVATION PROGRAMS
Pub. L. 107–63, title I, Nov. 5, 2001, 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, title I, Oct. 11, 2000, 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, § 9001, Oct. 25, 1999, 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 spe-
§ 2799aa–1
cific 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.’’
SANCTIONS AGAINST INDIA FOR DETONATION OF A
NUCLEAR EXPLOSIVE DEVICE
Determination 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 DEVICE
Determination 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
PAKISTAN
Provisions 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.
§ 2799aa–2
TITLE 22—FOREIGN RELATIONS AND INTERCOURSE
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.
§ 2799aa–2. ‘‘Nuclear explosive device’’ defined
As used in this subchapter, the term ‘‘nuclear
explosive device’’ has the meaning given that
term in section 6305(4) of this title.
(Pub. L. 90–629, ch. 10, § 103, as added Pub. L.
103–236, title VIII, § 826(a), Apr. 30, 1994, 108 Stat.
519.)
CHAPTER 40—INTERNATIONAL EXPOSITIONS
Sec.
2801.
2802.
2803.
2804.
2805.
2806.
2807.
Congressional findings.
Federal recognition.
Federal participation.
Establishment of standards and criteria; publication in the Federal Register.
Withdrawal of Federal recognition or participation.
Other provisions unaffected.
Authorization of appropriations.
§ 2801. Congressional findings
The Congress finds that—
(a) international expositions, when properly
organized, financed, and executed, have a significant impact on the economic growth of the
region surrounding the exposition and, under
appropriate international sanction, are important instruments of national policy, particularly in the exchange of ideas and the demonstration of cultural achievements between
peoples;
(b) in view of the widely varying circumstances under which international expositions
have developed in the United States, the different degrees to which the Federal Government has assisted and participated in such expositions, and the increasing number of proposals for future expositions, the national interest requires that Federal action concerning
such expositions be given orderly consideration; and
(c) such orderly consideration is best
achieved by the development of uniform standards, criteria, and procedures to establish the
conditions under which the Government hereafter will (A) recognize international expositions proposed to be held in the United
States, and (B) take part in such expositions.
(Pub. L. 91–269, § 1, May 27, 1970, 84 Stat. 271.)
§ 2802. Federal recognition
(a) Eligibility requirements
Any international exposition proposed to be
held in the United States shall be eligible on application from its sponsors to receive the recognition of the Federal Government upon a finding of the President that recognition will be in
the national interest. In making such a finding
the President shall consider—
Page 1070
(1) a report by the Secretary of Commerce
which shall include (A) an evaluation of purposes and reasons for the exposition, and (B) a
determination that guaranteed financial and
other support has been secured by the exposition from affected State and local governments and from business and civic leadership
of the region and others in amounts sufficient
in his judgment to assure the successful development and progress of the exposition;
(2) a report by the Secretary of State that
the proposed exposition qualifies for consideration of registration by the Bureau of International Expositions (hereafter referred to as
BIE); and
(3) such other evidence as the President may
consider to be appropriate.
(b) Recognition and registration procedure; compliance with international convention; participation by States and foreign governments
Upon a finding by the President that an international exposition is eligible for Federal recognition, the President may take such measures
recognizing the exposition as he deems proper,
including, but not limited to—
(1) presenting of an official request by the
United States for registration of the exposition by the BIE;
(2) providing for fulfillment of the requirements of the Convention of November 22, 1928,
as amended, relating to international expositions; and
(3) extending invitations, by proclamation or
by such other manner he deems proper, to the
several States of the Union and to foreign governments to take part in the exposition, provided that he shall not extend such an invitation until he has been notified officially of BIE
registration for the exposition.
(c) Report to Congress
The President shall report his actions under
this section promptly to the Congress.
(Pub. L. 91–269, § 2, May 27, 1970, 84 Stat. 271.)
§ 2803. Federal participation
(a) Congressional authorization; proposals
The Federal Government may participate in
an international exposition proposed to be held
in the United States only upon the authorization of the Congress. If the President finds that
Federal participation is in the national interest,
he shall transmit to the Congress his proposal
for such participation, which proposal shall include—
(1) evidence that the international exposition has met the criteria for Federal recognition and, pursuant to section 2802 of this title,
it has been so recognized;
(2) a statement that the international exposition has been registered by the BIE; and
(3) a plan prepared by the Secretary of Commerce in cooperation with other interested departments and agencies of the Federal Government for Federal participation in the exposition. The Secretary of Commerce shall include in such plan any documentation described in subsection (b)(1)(A) of this section,
a rendering of any design described in subsection (b)(1)(B) of this section, and any rec-
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