[USC02] 22 USC Ch. 39: ARMS EXPORT CONTROL
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22 USC Ch. 39: ARMS EXPORT CONTROL
From Title 22—FOREIGN RELATIONS AND INTERCOURSE

CHAPTER 39—ARMS EXPORT CONTROL

SUBCHAPTER I—FOREIGN AND NATIONAL SECURITY POLICY OBJECTIVES AND RESTRAINTS

Sec.
2751.
Need for international defense cooperation and military export controls; Presidential waiver; report to Congress; arms sales policy.
2752.
Coordination with foreign policy.
2753.
Eligibility for defense services or defense articles.
2754.
Purposes for which military sales or leases by the United States are authorized; report to Congress.
2755.
Discrimination prohibited if based on race, religion, national origin, or sex.
2756.
Foreign intimidation and harassment of individuals in United States.

        

SUBCHAPTER II—FOREIGN MILITARY SALES AUTHORIZATIONS

2761.
Sales from stocks.
2762.
Procurement for cash sales.
2763.
Credit sales.
2764.
Guaranties.
2765.
Annual estimate and justification for sales program.
2766.
Security assistance surveys.
2767.
Authority of President to enter into cooperative projects with friendly foreign countries.
2767a, 2768.
Repealed.

        

SUBCHAPTER II–A—FOREIGN MILITARY CONSTRUCTION SALES

2769.
Foreign military construction sales.

        

SUBCHAPTER II–B—SALES TO UNITED STATES COMPANIES FOR INCORPORATION INTO END ITEMS

2770.
General authority.

        

SUBCHAPTER II–C—EXCHANGE OF TRAINING AND RELATED SUPPORT

2770a.
Exchange of training and related support.

        

SUBCHAPTER III—MILITARY EXPORT CONTROLS

2771.
Military sales authorizations and ceilings.
2772.
Repealed.
2773.
Restraint in arms sales to Sub-Saharan Africa.
2774.
Foreign military sales credit standards.
2775.
Foreign military sales to less developed countries.
2776.
Reports and certifications to Congress on military exports.
2776a.
Repealed.
2777.
Fiscal provisions relating to foreign military sales credits.
2778.
Control of arms exports and imports.
2778a.
Exportation of uranium depleted in the isotope 235.
2779.
Fees of military sales agents.
2779a.
Prohibition on incentive payments.
2780.
Transactions with countries supporting acts of international terrorism.
2781.
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.
General provisions.
2792.
Administrative expenses.
2793.
Other provisions unaffected.
2794.
Definitions.

        

SUBCHAPTER V—SPECIAL DEFENSE ACQUISITION FUND

2795.
Fund.
2795a.
Use and transfer of items procured by Fund.
2795b.
Repealed.

        

SUBCHAPTER VI—LEASES OF DEFENSE ARTICLES AND LOAN AUTHORITY FOR COOPERATIVE RESEARCH AND DEVELOPMENT PURPOSES

2796.
Leasing authority.
2796a.
Reports to Congress.
2796b.
Legislative review procedures.
2796c.
Applicability of other statutory provisions.
2796d.
Loan of materials, supplies, and equipment for research and development purposes.

        

SUBCHAPTER VII—CONTROL OF MISSILES AND MISSILE EQUIPMENT OR TECHNOLOGY

2797.
Licensing.
2797a.
Denial of transfer of missile equipment or technology by United States persons.
2797b.
Transfers of missile equipment or technology by foreign persons.
2797b–1.
Notification of admittance of MTCR adherents.
2797b–2.
Authority relating to MTCR adherents.
2797c.
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.
Purpose.
2799a.
CFE Treaty obligations.
2799b.
Authorities.
2799c.
Notifications and reports to Congress.
2799d.
Definitions.

        

SUBCHAPTER X—NUCLEAR NONPROLIFERATION CONTROLS

2799aa.
Nuclear enrichment transfers.
2799aa–1.
Nuclear reprocessing transfers, illegal exports for nuclear explosive devices, transfers of nuclear explosive devices, and nuclear detonations.
2799aa–2.
"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 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 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 arms-purchasing 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

Pub. L. 94–329, title II, §201(b), June 30, 1976, 90 Stat. 734, 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

Pub. L. 90–629, ch. 4, §45(c), Oct. 22, 1968, 82 Stat. 1327, provided that: "References in law to the provisions of law repealed by subsection (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

1981Pub. 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.

1978Pub. L. 95–384, §15(a), inserted paragraph relating to adherence to a policy of restraint in conventional arms transfer.

1976Pub. 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.

1973Pub. 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.

1971Pub. L. 91–672 substituted "denying the growth of fundamental rights or social progress" for "denying social progress" in last par.

Effective Date

Pub. L. 90–629, ch. 4, §41, Oct. 22, 1968, 82 Stat. 1326, 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 2016 Amendment

Pub. L. 114–123, §1, Feb. 18, 2016, 130 Stat. 117, provided that: "This Act [enacting provisions set out as a note under section 2753 of this title] may be cited as the 'United States-Jordan Defense Cooperation Act of 2015'."

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 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, §1, Oct. 22, 1968, 82 Stat. 1320, as amended by Pub. L. 94–329, title II, §201(a), June 30, 1976, 90 Stat. 734, 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'."

Enhancing Defense and Security Cooperation With India

Pub. L. 114–328, div. A, title XII, §1292, Dec. 23, 2016, 130 Stat. 2559, provided that:

"(a) Actions.—

"(1) In general.—The Secretary of Defense and Secretary of State should jointly take such actions as may be necessary to—

"(A) recognize India's status as a major defense partner of the United States;

"(B) designate an individual within the executive branch who has experience in defense acquisition and technology—

"(i) to reinforce and ensure, through interagency policy coordination, the success of the Framework for the United States-India Defense Relationship; and

"(ii) to help resolve remaining issues impeding United States-India defense trade, security cooperation, and co-production and co-development opportunities;

"(C) approve and facilitate the transfer of advanced technology, consistent with United States conventional arms transfer policy, to support combined military planning with India's military for missions such as humanitarian assistance and disaster relief, counter piracy, freedom of navigation, and maritime domain awareness missions, and to promote weapons systems interoperability;

"(D) strengthen the effectiveness of the U.S.-India Defense Trade and Technology Initiative and the durability of the Department of Defense's 'India Rapid Reaction Cell';

"(E) collaborate with the Government of India to develop mutually agreeable mechanisms to verify the security of defense articles, defense services, and related technology, such as appropriate cyber security and end use monitoring arrangements, consistent with United States export control laws and policy;

"(F) promote policies that will encourage the efficient review and authorization of defense sales and exports to India;

"(G) encourage greater government-to-government and commercial military transactions between the United States and India;

"(H) support the development and alignment of India's export control and procurement regimes with those of the United States and multilateral control regimes; and

"(I) continue to enhance defense and security cooperation with India in order to advance United States interests in the South Asia and greater Indo-Asia-Pacific regions.

"(2) Report.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], and annually thereafter, the Secretary of Defense and Secretary of State shall jointly submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and House of Representatives] and the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives a report on how the United States is supporting its defense relationship with India in relation to the actions described in paragraph (1).

"(b) Bilateral Coordination.—To enhance cooperation and encourage military-to-military engagement between the United States and India, the Secretary of Defense should take appropriate actions to ensure that exchanges between senior military officers and senior civilian defense officials of the United States Government and the Government of India—

"(1) are at a level appropriate to enhance engagement between the militaries of the two countries for threat analysis, military doctrine, force planning, mutual security interests, logistical support, intelligence, tactics, techniques and procedures, humanitarian assistance, and disaster relief;

"(2) include exchanges of general and flag officers between the two countries;

"(3) enhance cooperative military operations, including maritime security, counter-piracy, counter-terror cooperation, and domain awareness, in the Indo-Asia-Pacific region;

"(4) accelerate the development of combined military planning for missions such as those identified in subsection (a)(1)(C) or in paragraph (1) of this subsection, or other missions in the national security interests of both countries; and

"(5) solicit and recognize actions and efforts by India that would allow the United States to treat India as a major defense partner.

"(c) Assessment Required.—

"(1) In general.—The Secretary of Defense and Secretary of State shall jointly, on an ongoing basis, conduct an assessment of the extent to which India possesses capabilities to support and carry out military operations of mutual interest to the United States and India, including an assessment of the defense export control regulations and policies that need appropriate modification, in recognition of India's capabilities and its status as a major defense partner.

"(2) Use of assessment.—The President shall ensure that the assessment described in paragraph (1) is used, consistent with United States conventional arms transfer policy, to inform the review by the United States of requests to export defense articles, defense services, or related technology to India under the Arms Export Control Act (22 U.S.C. 2751 et seq.), and to inform any regulatory and policy adjustments that may be appropriate."

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 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 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 foreign 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. 4605(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 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-man-portable 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 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

"(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 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.

"(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. 112–239, div. A, title X, §1076(c)(1), Jan. 2, 2013, 126 Stat. 1949, 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:

"(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.

"(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) [now 50 U.S.C. 3003]."

[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 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

Pub. L. 97–113, title VII, §734(c), Dec. 29, 1981, 95 Stat. 1561, 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

Pub. L. 95–384, §15(b), Sept. 26, 1978, 92 Stat. 740, 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 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

Pub. L. 95–384, §25, Sept. 26, 1978, 92 Stat. 746, 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

Pub. L. 94–329, title II, §202(b), June 30, 1976, 90 Stat. 735, 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

Pub. L. 94–329, title II, §217, June 30, 1976, 90 Stat. 747, set forth provisions respecting report by the President of all sales under this 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

Pub. L. 94–329, title II, §218, June 30, 1976, 90 Stat. 748, 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

Pub. L. 94–329, title V, §506(b), June 30, 1976, 90 Stat. 764, 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

Pub. L. 91–672, §5, Jan. 12, 1971, 84 Stat. 2053, 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

Pub. L. 91–672, §6, Jan. 12, 1971, 84 Stat. 2053, 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 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 foreign military sales, was revoked by Ex. Ord. No. 11958, Jan. 18, 1977, 42 F.R. 4311, formerly set out below.

Executive Order No. 11958

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, which related to the administration of arms export controls, was revoked by Ex. Ord. No. 13637, §4, Mar. 8, 2013, 78 F.R. 16131, set out below.

Ex. Ord. No. 13637. Administration of Reformed Export Controls

Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Arms Export Control Act, as amended (22 U.S.C. 2751 et seq.) (the "Act"), and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Delegation of Functions. The following functions conferred upon the President by the Act, and related laws, 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) (22 U.S.C. 2753(a)(1), (b), (c)(3), (c)(4), and (f)), to the Secretary of State. The Secretary of State, in the implementation of the delegated functions under sections 3(a) and (d) of the Act (22 U.S.C. 2753(a) and (d)), 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 (22 U.S.C. 2753(a)(1)), 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) and (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, and 2770a) to the Secretary of Defense.

(e) Those under section 23 of the Act (22 U.S.C. 2763), and under section 7069 of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2012 (Public Law 112–74, Division I) and any subsequently enacted provision of law that is the same or substantially the same, to the Secretary of Defense to be exercised in consultation with the Secretary of State and, other than the last sentence of section 23(a) (22 U.S.C. 2763(a)), in consultation with the Secretary of the Treasury, except that the President shall determine any rate of interest to be charged that is less than the market rate of interest.

(f) Those under sections 24 and 27 of the Act (22 U.S.C. 2764 and 2767) to the Secretary of Defense. The Secretary of Defense shall consult with the Secretary of State and the Secretary of the Treasury in implementing the delegated functions under section 24 (22 U.S.C. 2764) and with the Secretary of State in implementing the delegated functions under section 27 (22 U.S.C. 2767).

(g) Those under section 25 of the Act (22 U.S.C. 2765) to the Secretary of State. The Secretary of Defense 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 and criteria for credit and guaranty transactions are based upon national security or 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) and (b)(1)), except with respect to the certification of an emergency as provided by subsection (b)(1) (22 U.S.C. 2776(b)(1)), to the Secretary of Defense. The Secretary of Defense, in the implementation of the delegated functions under sections 36(a) and (b)(1) (22 U.S.C. 2776(a) and (b)(1)), shall consult with the Secretary of State. With respect to those functions under sections 36(a)(5) and (6) (22 U.S.C. 2776(a)(5) and (6)), the Secretary of Defense shall consult with the Director of the Office of Management and Budget.

(k) Those under section 36(b)(1) with respect to the certification of an emergency as provided by subsection (b)(1) and under sections 36(c) and (d) of the Act (22 U.S.C. 2776(b)(1), (c), and (d)) to the Secretary of State.

(l) Those under section 36(f)(1) of the Act (22 U.S.C. 2776(f)(1)) to the Secretary of Defense.

(m) Those under sections 36(f)(2) and (f)(3) of the Act (22 U.S.C. 2776(f)(2) and (f)(3)) to the Secretary of State.

(n) Those under section 38 of the Act (22 U.S.C. 2778) to:

(i) 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 that shall be considered as defense articles and defense services subject to export control under section 38 (22 U.S.C. 2778) 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 executive department or agency as appropriate, who shall exercise such functions in consultation with the Secretary of State;

(ii) the Attorney General, to the extent they relate to the control of the permanent 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 that shall be considered as defense articles and defense services subject to permanent import control under section 38 of the Act (22 U.S.C. 2778) shall be made with the concurrence of the Secretary of State and the Secretary of Defense and with notice to the Secretary of Commerce; and

(iii) the Department of State for the registration and licensing of those persons who engage in the business of brokering activities with respect to defense articles or defense services controlled either for purposes of export by the Department of State or for purposes of permanent import by the Department of Justice.

(o) 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).

(p) Those under the portion of section 40A of the Act added by Public Law 104–164 (22 U.S.C. 2785), 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.

(q) Those under the portion of section 40A of the Act added by the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104–132) (22 U.S.C. 2781), to the Secretary of State.

(r) Those under sections 42(c) and (f) of the Act (22 U.S.C. 2791(c) and (f)) to the Secretary of Defense. The Secretary of Defense shall obtain the concurrence of the Secretary of State and the Secretary of Commerce on any determination considered under the authority of section 42(c) of the Act (22 U.S.C. 2791(c)).

(s) Those under section 52(b) of the Act (22 U.S.C. 2795a(b)) to the Secretary of Defense.

(t) Those under sections 61 and 62(a) of the Act (22 U.S.C. 2796 and 2796a(a)) to the Secretary of Defense.

(u) Those under section 2(b)(6) of the Export-Import Bank Act of 1945, as amended (12 U.S.C. 635(b)(6)) to 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 executive departments and agencies on matters pertaining to their responsibilities.

(b) Under the direction of the President and in accordance with section 2(b) of the Act (22 U.S.C. 2752(b)), 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 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 11958 of January 18, 1977, 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 11958, 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.

Sec. 5. Delegation of Functions under the International Emergency Economic Powers Act. [Amended Ex. Ord. No. 13222, listed in a table under section 1701 of Title 50, War and National Defense.]

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

§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—

(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 Amendment 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 Amendment 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.

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, the Committee on Foreign Affairs of the House of Representatives, and to the Committee 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) 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 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) 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, the Committee on Foreign Affairs 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,

(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 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, the Committee on Foreign Affairs 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 between 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, the Committee on Foreign Affairs 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, 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; Pub. L. 113–276, title II, §208(a)(1), Dec. 18, 2014, 128 Stat. 2992.)

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

2014—Subsecs. (a), (d)(1), (3)(A), (e). Pub. L. 113–276 substituted "the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and" for "the Speaker of the House of Representatives and".

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).

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).

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 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

Pub. L. 104–164, title I, §141(f), July 21, 1996, 110 Stat. 1433, 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

Pub. L. 94–329, title II, §203(a), June 30, 1976, 90 Stat. 735, provided that the amendment made by that section is effective July 1, 1976.

Delegation of Functions

For delegation of certain functions of the President under this section, see section 1(a) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

Enhanced Defense Cooperation

Pub. L. 114–123, §5, Feb. 18, 2016, 130 Stat. 118, provided that:

"(a) In General.—During the 3-year period beginning on the date of the enactment of this Act [Feb. 18, 2016], the Hashemite Kingdom of Jordan shall be treated as if it were a country listed in the provisions of law described in subsection (b) for purposes of applying and administering such provisions of law.

"(b) Arms Export Control Act.—The provisions of law described in this subsection are—

"(1) subsections (b)(2), (d)(2)(B), (d)(3)(A)(i), and (d)(5) of section 3 of the Arms Export Control Act (22 U.S.C. 2753);

"(2) subsections (e)(2)(A), (h)(1)(A), and (h)(2) of section 21 of such Act (22 U.S.C. 2761);

"(3) subsections (b)(1), (b)(2), (b)(6), (c), and (d)(2)(A) of section 36 of such Act (22 U.S.C. 2776);

"(4) section 62(c)(1) of such Act (22 U.S.C. 2796a(c)(1)); and

"(5) section 63(a)(2) of such Act (22 U.S.C. 2796b(a)(2))."

Pilot Program on Repair, Overhaul, and Refurbishment of Defense Articles for Sale or Transfer to Eligible Foreign Countries and Entities

Pub. L. 112–239, div. A, title XII, §1285, Jan. 2, 2013, 126 Stat. 2036, provided that:

"(a) Pilot Program Authorized.—The Secretary of Defense may carry out a pilot program to repair, overhaul, or refurbish in-stock defense articles in anticipation of the sale or transfer of such defense articles to eligible foreign countries or international organizations under law.

"(b) Fund for Support of Program Authorized.—The Secretary of Defense may establish and administer a fund to be known as the 'Special Defense Repair Fund' (in this section referred to as the 'Fund') to support the program authorized by subsection (a).

"(c) Credits to Fund.—

"(1) In general.—Subject to paragraphs (2) and (3), the following shall be credited to the Fund:

"(A) Such amounts, not to exceed $50,000,000, from amounts authorized to be appropriated for overseas contingency operations for fiscal year 2013 as the Secretary of Defense considers appropriate, and reprogrammed under a reprogramming authority provided by another provision of this Act or by other law.

"(B) Notwithstanding section 114(c) of title 10, United States Code, any collection from the sale or transfer of defense articles from Department of Defense stocks repaired, overhauled, or refurbished with amounts from the Fund that are not intended to be replaced which sale or transfer is made pursuant to section 21(a)(1)(A) of the Arms Export Control Act (22 U.S.C. 2761(a)(1)(A)), the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.), or another provision of law.

"(C) Notwithstanding section 37(a) of the Arms Export Control Act (22 U.S.C. 2777(a)), any cash payment from the sale or transfer of defense articles from Department of Defense stocks repaired, overhauled, or refurbished with amounts from the Fund that are intended to be replaced.

"(2) Limitation on amounts creditable from sale or transfer of articles.—

"(A) Credits in connection with articles not to be replaced.—The amount credited to the Fund under paragraph (1)(B) in connection with a collection from the sale or transfer of defense articles may not exceed the cost incurred by the Department of Defense in repairing, overhauling, or refurbishing such defense articles under the program authorized by subsection (a).

"(B) Credits in connection with articles to be replaced.—The amount credited to the Fund under paragraph (1)(C) in connection with a sale or transfer of defense articles may not exceed the amounts from the Fund used to repair, overhaul, or refurbish such defense articles.

"(3) Limitation on size of fund.—The total amount in the Fund at any time may not exceed $50,000,000.

"(4) Treatment of amounts credited.—Amounts credited to the Fund under this subsection shall be merged with amounts in the Fund, and shall remain available until expended.

"(5) Authorization to purchase services from dod working capital fund activities.—The Fund shall be considered an authorized customer of Department of Defense Working Capital Fund activities. Prices of goods and services sold by Working Capital Fund activities to the Fund shall reflect Foreign Military Sales pricing guidelines, as promulgated by the Department of Defense Financial Management Regulation, and other applicable guidelines.

"(d) Nonavailability of Amounts in Fund for Storage, Maintenance, and Related Costs.—Following the repair, overhaul, or refurbishment of defense articles under the program authorized by subsection (a), amounts in the Fund may not be used to pay costs of storage and maintenance of such defense articles or any other costs associated with the preservation or preparation for sale or transfer of such defense articles.

"(e) Sales or Transfers of Defense Articles.—

"(1) In general.—Any sale or transfer of defense articles repaired, overhauled, or refurbished under the program authorized by subsection (a) shall be in accordance with—

"(A) the Arms Export Control Act (22 U.S.C. 2751 et seq.);

"(B) the Foreign Assistance Act of 1961; or

"(C) another provision of law authorizing such sale or transfer.

"(2) Secretary of state concurrence required for certain sales or transfers to foreign countries.—If the sale or transfer of defense articles occurs in accordance with a provision of law referred to in paragraph (1)(C) that does not otherwise require the concurrence of the Secretary of State for the sale or transfer, the sale or transfer may be made only with the concurrence of the Secretary of State.

"(f) Transfers of Amounts.—

"(1) Transfer to other department of defense accounts.—Amounts in the Fund may be transferred to any Department of Defense account for use in carrying out the program authorized by subsection (a). Any amount so transferred shall be merged with amounts in the account to which transferred, and shall be available for the same purposes and the same time period as amounts in the account to which transferred.

"(2) Transfer from other department of defense accounts.—Upon a determination by the Secretary of Defense with respect to an amount transferred under paragraph (1) that all or part of such transfer is not necessary for the purposes transferred, such amount may be transferred back to the Fund. Any amount so transferred shall be merged with amounts in the Fund, and shall remain available until expended.

"(g) Certain Excess Proceeds To Be Credited to Special Defense Acquisition Fund.—Any collection from the sale or transfer of defense articles that are not intended to be replaced in excess of the amount creditable to the Fund under subsection (c)(2)(A) shall be credited to the Special Defense Acquisition Fund established pursuant to chapter 5 of the Arms Export Control Act (22 U.S.C. 2795 et seq.).

"(h) Materiel Efficiencies and Duplication.—In administering the program authorized by subsection (a), the Secretary of Defense shall ensure to the maximum extent possible that purchases made utilizing the Fund utilize existing Defense Logistics Agency contracts. The Secretary shall also ensure that none of the activities carried out under the program authorized by subsection (a) are duplicative in nature to those performed by other military departments or Defense Agencies.

"(i) Conduct by Public or Private Sector Facilities or Entities.—The repair, overhaul, and refurbishment of defense articles under the program authorized by subsection (a) may be conducted by a facility or entity in the public sector or the private sector, consistent with the requirements of chapter 146 of title 10, United States Code.

"(j) Reports.—

"(1) Annual report.—Not later than 45 days after the end of each fiscal year through the date of expiration specified in subsection (l), the Secretary of Defense shall submit to the appropriate congressional committees a report on the authorities under this section during such fiscal year. Each report shall include, for the fiscal year covered by such report, the following:

"(A) The types and quantities of defense articles repaired, overhauled, or refurbished under the program authorized by subsection (a).

"(B) The value of the repair, overhaul, or refurbishment performed under the program.

"(C) The amount of operation and maintenance funds credited to the Fund under subsection (c)(1)(A).

"(D) The amount of any collections from the sale or transfer of defense articles repaired, overhauled, or refurbished under the program that was credited to the Fund under subsection (c)(1)(B).

"(E) The amount of any cash payments from the sale or transfer of defense articles repaired, overhauled, or refurbished under the program that was credited to the Fund under subsection (c)(1)(C).

"(2) Assessment report.—Not later than February 1, 2015, the Secretary of Defense shall submit to the appropriate congressional committees a report on the operation of the authorities in this section. The report shall include an assessment of the effectiveness of the authorities in meeting the objectives of the program authorized by subsection (a). At a minimum, the assessment shall address the following:

"(A) Cost efficiencies generated by utilization of the Fund.

"(B) Time efficiencies gained in the delivery of defense articles under the program.

"(C) An explanation of all amounts transferred to and from the Fund pursuant to subsection (f).

"(D) A detailed account of excess proceeds credited to the Special Defense Acquisition Fund pursuant to section (g).

"(E) A list of defense articles, by quantity and type, repaired under the program and an identification of the foreign countries or international organizations to which the repaired defense articles were sold or transferred.

"(3) Appropriate congressional committees defined.—In this subsection, the term 'appropriate congressional committees' means—

"(A) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(B) the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.

"(k) Defense Article Defined.—In this section, the term 'defense article' has the meaning given that term in section 47(3) of the Arms Export Control Act (22 U.S.C. 2794(3)).

"(l) Expiration of Authority.—The authority to carry out the program authorized by subsection (a), and to use amounts in the Fund in support of the program, shall expire on September 30, 2015."

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. 3091 et seq.] is excluded from the requirements of this section."

[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))."

1 So in original. The closing parenthesis probably should not appear.

§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.

(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

2002Pub. 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.

1981Pub. 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, the Committee on Foreign Affairs 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 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. 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; Pub. L. 113–276, title II, §208(a)(1), Dec. 18, 2014, 128 Stat. 2992.)

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

2014—Subsec. (c). Pub. L. 113–276 substituted "the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and" for "the Speaker of the House of Representatives and".

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

For delegation of functions of the President under this section, see section 1(b) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

§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, the Committee on Foreign Affairs 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; amended Pub. L. 113–276, title II, §208(a)(1), Dec. 18, 2014, 128 Stat. 2992.)

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

2014Pub. L. 113–276 substituted "the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and" for "the Speaker of the House of Representatives and".

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 high-income 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 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 sixty-day 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 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 North Atlantic Treaty Organization (NATO) Support Organization and its executive agencies in support of—

(i) a support 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 North Atlantic Treaty Organization (NATO) Support Organization and its executive agencies that—

(I) is entered into pursuant to the terms of the charter of that organization; and

(II) is for the common logistic support of activities common to the participating countries; and


(ii) the term "NATO/SHAPE project" means a common-funded project supported by allocated 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, the Committee on Foreign Affairs 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 cataloging 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, the Committees on Foreign Affairs and Armed Services 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 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.

(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) 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

(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; Pub. L. 113–66, div. A, title XII, §1250(b), Dec. 26, 2013, 127 Stat. 926; Pub. L. 113–276, title II, §208(a)(1), (2), Dec. 18, 2014, 128 Stat. 2992, 2993.)

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 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

2014—Subsec. (g). Pub. L. 113–276, §208(a)(1), substituted "the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and" for "the Speaker of the House of Representatives and".

Subsec. (i)(1). Pub. L. 113–276, §208(a)(2), inserted ", the Committees on Foreign Affairs and Armed Services of the House of Representatives," after "the Speaker of the House of Representatives" in introductory provisions.

2013—Subsec. (e)(3)(A). Pub. L. 113–66, §1250(b)(1), substituted "North Atlantic Treaty Organization (NATO) Support Organization and its executive agencies" for "Maintenance and Supply Agency of the North Atlantic Treaty Organization" in introductory provisions.

Subsec. (e)(3)(A)(i). Pub. L. 113–66, §1250(b)(2), substituted "support partnership agreement" for "weapon system partnership agreement".

Subsec. (e)(3)(C)(i). Pub. L. 113–66, §1250(b)(1), substituted "North Atlantic Treaty Organization (NATO) Support Organization and its executive agencies" for "Maintenance and Supply Agency of the North Atlantic Treaty Organization" in introductory provisions.

Subsec. (e)(3)(C)(i)(II). Pub. L. 113–66, §1250(b)(3), substituted "activities" for "a specific weapon system".

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.

"(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.

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

Pub. L. 104–106, div. D, title XLIII, §4303(b)–(d), Feb. 10, 1996, 110 Stat. 659, 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.

"(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

Pub. L. 104–164, title I, §152(c), July 21, 1996, 110 Stat. 1439, 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

For delegation of certain functions of the President under this section, see section 1(c) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

International Sales Process Improvements

Pub. L. 114–328, div. A, title XII, §1297, Dec. 23, 2016, 130 Stat. 2563, provided that:

"(a) Plan Required.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall develop a plan to improve the management and use of fees collected on transfer of defense articles and services via sale, lease, or grant to international customers under programs over which the Defense Security Cooperation Agency has administration responsibilities. The plan shall include options to use fees more effectively—

"(1) to improve the staffing and processes of the licensing review cycle at the Defense Technology Security Administration and other reviewing authorities; and

"(2) to maintain a cadre of contracting officers and acquisition officials who specialize in foreign military sales contracting.

"(b) Process for Gathering Input.—The Secretary of Defense shall establish a process for contractors to provide input, feedback, and adjudication of any differences regarding the appropriateness of governmental pricing and availability estimates prior to the delivery to potential foreign customers of formal responses to Letters of Request for Pricing and Availability."

1 So in original. Probably should be "subparagraph".

§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 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 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.

(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.)

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.

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 the former Appendix to Title 50, War and National Defense, prior to its omission from the Code.

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.

1973Pub. 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

Pub. L. 104–107, title V, §531A(b), Feb. 12, 1996, 110 Stat. 731, 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

For delegation of functions of the President under subsec. (a) of this section, see section 1(d) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

Requirement to use Firm Fixed-Price Contracts for Foreign Military Sales

Pub. L. 114–328, div. A, title VIII, §830, Dec. 23, 2016, 130 Stat. 2282, provided that:

"(a) Requirement.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall prescribe regulations to require the use of firm fixed-price contracts for foreign military sales.

"(b) Exceptions.—The regulations prescribed pursuant to subsection (a) shall include exceptions that may be exercised if the foreign country that is the counterparty to a foreign military sale—

"(1) has established in writing a preference for a different contract type; or

"(2) requests in writing that a different contract type be used for a specific foreign military sale.

"(c) Waiver Authority.—The regulations prescribed pursuant to subsection (a) shall include a waiver that may be exercised by the Secretary of Defense or his designee if the Secretary or his designee determines on a case-by-case basis that a different contract type is in the best interest of the United States and American taxpayers.

"(d) Pilot Program for Acceleration of Foreign Military Sales.—

"(1) In general.—The Secretary of Defense shall establish a pilot program to reform and accelerate the contracting and pricing processes associated with full rate production of major weapon systems for no more than 10 foreign military sales contracts by—

"(A) basing price reasonableness determinations on actual cost and pricing data for purchases of the same product for the Department of Defense; and

"(B) reducing the cost and pricing data to be submitted in accordance with section 2306a of title 10, United States Code.

"(2) Expiration of authority.—Authority for the pilot program under this subsection expires on January 1, 2020."

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.

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).

(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.

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.

1985Pub. 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."

1980Pub. 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".

1974Pub. 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

Pub. L. 94–329, title II, §208(b), June 30, 1976, 90 Stat. 739, 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

For delegation of functions of the President under this section and section 7069 of div. I of Pub. L. 112–74 (see Similar Provisions note below), with certain conditions and exceptions, see section 1(e) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

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:

Pub. L. 112–74, div. I, title VII, §7069, Dec. 23, 2011, 125 Stat. 1253.

Pub. L. 111–117, div. F, title VII, §7083, Dec. 16, 2009, 123 Stat. 3400.

Pub. L. 111–8, div. H, title VII, §7085, Mar. 11, 2009, 123 Stat. 912.

Pub. L. 110–161, div. J, title VI, §610, Dec. 26, 2007, 121 Stat. 2316.

Pub. L. 109–102, title V, §510, Nov. 14, 2005, 119 Stat. 2198.

Pub. L. 108–447, div. D, title V, §510, Dec. 8, 2004, 118 Stat. 2993.

Pub. L. 108–199, div. D, title V, §510, Jan. 23, 2004, 118 Stat. 170.

Pub. L. 108–7, div. E, title V, §575, Feb. 20, 2003, 117 Stat. 210.

Pub. L. 107–115, title V, §580, Jan. 10, 2002, 115 Stat. 2170.

Pub. L. 106–429, §101(a) [title V, §589], Nov. 6, 2000, 114 Stat. 1900, 1900A-59.

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. 104–107, title V, §528, Feb. 12, 1996, 110 Stat. 730.

Pub. L. 103–306, title V, §530, Aug. 23, 1994, 108 Stat. 1635.

Pub. L. 103–87, title V, §530, Sept. 30, 1993, 107 Stat. 954.

Pub. L. 102–391, title V, §558, Oct. 6, 1992, 106 Stat. 1676.

Pub. L. 101–513, title V, §561, Nov. 5, 1990, 104 Stat. 2026.

Pub. L. 101–167, title V, §571, Nov. 21, 1989, 103 Stat. 1245.

Pub. L. 100–461, title V, §580, Oct. 1, 1988, 102 Stat. 2268–48.

§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. 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

Pub. L. 93–559, §45(b), Dec. 30, 1974, 88 Stat. 1815, 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 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

For delegation of functions of the President under this section, with certain conditions, see section 1(f) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

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 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 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 defense 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 full-time 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;

(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) for additional information with respect to any information submitted pursuant to subsection (a), 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) 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.

(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 Foreign Affairs 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; Pub. L. 113–276, title II, §208(a)(3), Dec. 18, 2014, 128 Stat. 2993.)

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

2014—Subsec. (e). Pub. L. 113–276 substituted "Foreign Affairs" for "International Relations".

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)" 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".

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 actually 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)" for "this section".

Subsec. (d). Pub. L. 95–384, §18(a), 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.

Delegation of Functions

For delegation of functions of the President under this section, with certain conditions, see section 1(g) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

1 See References in Text note below.

2 So in original. Two subsecs. (d) have been enacted.

3 So in original. The semicolon probably should be a period.

§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 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".

1985Pub. 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 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), 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 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 Committee on Foreign Affairs 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 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 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; Pub. L. 113–276, title II, §208(a)(4), Dec. 18, 2014, 128 Stat. 2993.)

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

2014—Subsec. (f). Pub. L. 113–276 inserted "the Committee on Foreign Affairs of the House of Representatives," after "the Speaker of the House of Representatives," in introductory provisions.

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".

1986Pub. 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.

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).

1985Pub. 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

For delegation of functions of the President under this section, with certain conditions, see section 1(f) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

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 developing 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."

1 See References in Text note below.

2 So in original. Probably should be "sections".

3 So in original. The comma probably should not appear.

4 See References in Text note below.

5 So in original. The word "made" probably should not appear.

§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 damages 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

For delegation of functions of the President under this section, see section 1(d) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

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.

(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

For delegation of functions of the President under this section, see section 1(d) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

SUBCHAPTER II–C—EXCHANGE OF TRAINING AND RELATED SUPPORT

§2770a. Exchange of training and related support

(a) Authorization; eligibility; scope

Subject to subsection (b), 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.

(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.

Delegation of Functions

For delegation of functions of the President under this section, see section 1(d) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

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.

(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.)

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

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 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".

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 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

Pub. L. 96–92, §17(b), Oct. 29, 1979, 93 Stat. 709, 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 Sub-Saharan 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.)

Amendments

1979Pub. 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).

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

For delegation of functions of the President under this section, with certain conditions, see section 1(h) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16129, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

§2775. Foreign military sales to less developed countries

(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, 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

For delegation of functions of the President under subsec. (a) of this section, see section 1(i) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16130, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

§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, the Committee on Foreign Affairs 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 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;

(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. 3091 et seq.]; relating to congressional oversight of intelligence activities);

(11) a report on all concluded government-to-government 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.

(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, the Committee on Foreign Affairs 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), 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), and a description, containing the information specified in paragraph (8) 1 of subsection (a), 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;

(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 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) 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 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, the Committee on Foreign Affairs 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 subparagraph, 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, the Committee on Foreign Affairs 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 concerned 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 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 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) 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). For purposes of such application, any reference in subsection (b)(5) 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) containing comparable information, except that the last sentence of such subsection shall not apply to certifications 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

(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, the Committee on Foreign Affairs 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);

(2) each notification of a proposed commercial sale submitted under subsection (c); and

(3) each notification of a proposed commercial technical assistance or manufacturing licensing agreement submitted under subsection (d).

(g) Confidentiality

Information relating to offset agreements provided pursuant to subparagraph (C) of the fifth sentence of subsection (b)(1) and the second sentence of subsection (c)(1) shall be treated as confidential information in accordance with section 4614(c) of 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) Requirements with respect to determination for major defense equipment

A determination under paragraph (1) relating to the sale or export of major defense equipment shall include—

(A) a detailed explanation of Israel's capacity to address the improved capabilities provided by such sale or export;

(B) a detailed evaluation of—

(i) how such sale or export alters the strategic and tactical balance in the region, including relative capabilities; and

(ii) Israel's capacity to respond to the improved regional capabilities provided by such sale or export;


(C) an identification of any specific new capacity, capabilities, or training that Israel may require to address the regional or country-specific capabilities provided by such sale or export; and

(D) a description of any additional United States security assurances to Israel made, or requested to be made, in connection with, or as a result of, such sale or export.

(3) 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.

(i) Prior notification of shipment of arms

At least 30 days prior to a shipment of defense articles subject to the requirements of subsection (b) at the joint request of the Chairman and Ranking Member of the Committee on Foreign Relations of the Senate or the Committee on Foreign Affairs of the House of Representatives, the President shall provide notification of such pending shipment, in unclassified form, with a classified annex as necessary, to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.

(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. 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; Pub. L. 113–276, title II, §§201, 208(a)(1), Dec. 18, 2014, 128 Stat. 2990, 2992; Pub. L. 113–296, §11(b), Dec. 19, 2014, 128 Stat. 4078.)

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, which was formerly classified principally to chapter 15 (§401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§3001 et seq.) of Title 50. Title V of the National Security Act of 1947 is now classified generally to subchapter III (§3091 et seq.) of chapter 44 of Title 50. For complete classification of this Act to the Code, see Tables.

Paragraphs (8) and (9) of subsection (a), referred to in subsec. (b)(1), were redesignated as paragraphs (7) and (8), respectively, of subsection (a) 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

2014—Subsecs. (a), (b)(1), (5)(C), (c)(1), (f). Pub. L. 113–276, §208(a)(1), substituted "the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and" for "the Speaker of the House of Representatives and".

Subsec. (h)(2), (3). Pub. L. 113–296 added par. (2) and redesignated former par. (2) as (3).

Subsec. (i). Pub. L. 113–276, §201, added subsec. (i).

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).

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);

"(2) each notification of a proposed commercial sale submitted under subsection (c); and

"(3) each notification of a proposed commercial technical assistance or manufacturing licensing agreement submitted under subsection (d)." for "the full unclassified text of each numbered certification submitted pursuant to subsection (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 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)" 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.

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 "subsection (c)(1)" for "subsection (c)".

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).

1974—Subsecs. (a), (b). Pub. L. 93–559 added subsecs. (a) and (b).

1973Pub. 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 3001 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

Pub. L. 104–201, title X, §1045(b), Sept. 23, 1996, 110 Stat. 2645, 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

Pub. L. 94–329, title II, §211(b), June 30, 1976, 90 Stat. 744, 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."

Pub. L. 94–329, title VI, §604(c), June 30, 1976, 90 Stat. 768, 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

For delegation of certain functions of the President under this section, with certain conditions, see section 1(j)–(m) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16130, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

Assessment of Israel's Qualitative Military Edge Over Military Threats

Pub. L. 110–429, title II, §201, Oct. 15, 2008, 122 Stat. 4843, as amended by Pub. L. 113–296, §11(a), Dec. 19, 2014, 128 Stat. 4078, 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).

"(3) Biennial updates.—Two years after the date on which each quadrennial report is transmitted to Congress, the President shall—

"(A) reevaluate the assessment required under subsection (a); and

"(B) inform and consult with the appropriate congressional committees on the results of the reevaluation conducted pursuant to subparagraph (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

Pub. L. 96–92, §20(a), Oct. 29, 1979, 93 Stat. 710, 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.

1 See References in Text note below.

§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.

§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), 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 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) 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), 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 administration 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) 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.


(C) 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), no defense articles or defense services designated by the President under subsection (a)(1) 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.

(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. 4610(c), (d), (e), and (g)], and by subsections (a) and (c) of section 12 of such Act [50 U.S.C. 4614(a) and (c)], subject to the same terms and conditions as are applicable to such powers under such Act [50 U.S.C. 4601 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 determines 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, the Committee on Foreign Affairs 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) or any other provision of this chapter until 30 days after the date on which the President has transmitted to the Committee on Foreign Affairs 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) 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.

(5)(A) Except as provided in subparagraph (B), the President shall take such actions as may be necessary to require that, at the time of export or reexport of any major defense equipment listed on the 600 series of the Commerce Control List contained in Supplement No. 1 to part 774 of subtitle B of title 15, Code of Federal Regulations, the major defense equipment will not be subsequently modified so as to transform such major defense equipment into a defense article.

(B) The President may authorize the transformation of any major defense equipment described in subparagraph (A) into a defense article if the President—

(i) determines that such transformation is appropriate and in the national interests of the United States; and

(ii) provides notice of such transformation 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 consistent with the notification requirements of section 2776(b)(5)(A) of this title.


(C) In this paragraph, the term "defense article" means an item designated by the President pursuant to subsection (a)(1).

(6) The President shall ensure that any major defense equipment that is listed on the 600 series of the Commerce Control List contained in Supplement No. 1 to part 774 of subtitle B of title 15, Code of Federal Regulations, shall continue to be subject to the notification and reporting requirements of the following provisions of law:

(A) Section 2321j(f) of this title.

(B) Section 2415 of this title.

(C) Section 2753(d)(3)(A) of this title.

(D) Section 2765 of this title.

(E) Section 2776(b), (c), and (d) of this title.

(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) [50 U.S.C. 4610],

(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) [50 U.S.C. 4315],

(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. 3121]),

(xi) section 603(b) or (c) of the Comprehensive Anti-Apartheid Act of 1986 (22 U.S.C. 5113(b) and (c)), or

(xii) sections 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. 175c);


(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 application 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;

(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) 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 (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 (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 in 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 end-use 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 regime 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 Foreign Affairs 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 Foreign Affairs 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.

(k) Licensing of certain commerce-controlled items

(1) In general

A license or other approval from the Department of State granted in accordance with this section may also authorize the export of items subject to the Export Administration Regulations if such items are to be used in or with defense articles controlled on the United States Munitions List.

(2) Other requirements

The following requirements shall apply with respect to a license or other approval to authorize the export of items subject to the Export Administration Regulations under paragraph (1):

(A) Separate approval from the Department of Commerce shall not be required for such items if such items are approved for export under a Department of State license or other approval.

(B) Such items subject to the Export Administration Regulations that are exported pursuant to a Department of State license or other approval would remain under the jurisdiction of the Department of Commerce with respect to any subsequent transactions.

(C) The inclusion of the term "subject to the EAR" or any similar term on a Department of State license or approval shall not affect the jurisdiction with respect to such items.

(3) Definition

In this subsection, the term "Export Administration Regulations" means—

(A) the Export Administration Regulations as maintained and amended under the authority of the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.); or

(B) any successor regulations.

(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, 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; Pub. L. 113–276, title II, §§204, 205, 208(a)(1), (3), (b)(1)(A), Dec. 18, 2014, 128 Stat. 2990–2993.)

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, which is classified principally to chapter 56 (§4601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see 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.

The International Emergency Economic Powers Act, referred to in subsec. (k)(3)(A), is title II of Pub. L. 95–223, Dec. 28, 1977, 91 Stat. 1626, which is classified generally to chapter 35 (§1701 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1701 of Title 50 and Tables.

Reference to Section 1934 of This Title Deemed Reference to This Section

Pub. L. 94–329, title II, §212(b)(1), June 30, 1976, 90 Stat. 745, 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

2014—Subsec. (b)(1)(B), (C). Pub. L. 113–276, §208(b)(1)(A)(i), redesignated subpar. (B) relating to review by Secretary of the Treasury of munitions control registrations as (C).

Subsec. (f)(1). Pub. L. 113–276, §208(a)(1), substituted "the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and" for "the Speaker of the House of Representatives and".

Subsec. (f)(2). Pub. L. 113–276, §208(a)(3), substituted "Foreign Affairs" for "International Relations" in introductory provisions.

Subsec. (f)(5). Pub. L. 113–276, §205(a), added par. (5).

Subsec. (f)(6). Pub. L. 113–276, §205(b), added par. (6).

Subsec. (g)(1)(A)(xi). Pub. L. 113–276, §208(b)(1)(A)(ii)(I), substituted ", or" for "; or".

Subsec. (g)(1)(A)(xii). Pub. L. 113–276, §208(b)(1)(A)(ii)(II), substituted "sections" for "section" and "(18 U.S.C. 175c)" for "(18 U.S.C. 175b)".

Subsec. (j)(2). Pub. L. 113–276, §208(b)(1)(A)(iii), inserted "in" before "paragraph (1)" in introductory provisions.

Subsec. (j)(3), (4)(B)(i). Pub. L. 113–276, §208(a)(3), substituted "Foreign Affairs" for "International Relations".

Subsec. (k). Pub. L. 113–276, §204, added subsec. (k).

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 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" 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 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

Pub. L. 104–164, title I, §151(b), July 21, 1996, 110 Stat. 1438, 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

Pub. L. 100–202, §101(b) [title VIII, §8142(b)], Dec. 22, 1987, 101 Stat. 1329–43, 1329-88, 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 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

Pub. L. 99–83, title I, §119(c), Aug. 8, 1985, 99 Stat. 204, 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 4621 of Title 50, War and National Defense, and Prior Provisions note set out under section 4616 of Title 50.

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 arrangement 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

For delegation of functions of the President under this section, with certain conditions, see section 1(n) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16130, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

Satellites and Related Items

Pub. L. 112–239, div. A, title XII, subtitle E, Jan. 2, 2013, 126 Stat. 2018, provided that:

"SEC. 1261. REMOVAL OF SATELLITES AND RELATED ITEMS FROM THE UNITED STATES MUNITIONS LIST.

"(a) Repeal.—[Amended section 1513 of Pub. L. 105–261, set out in a note below.]

"(b) Additional Determination and Report.—Accompanying but separate from the submission to Congress of the first notification after the date of the enactment of this Act [Jan. 2, 2013] under section 38(f) of the Arms Export Control Act (22 U.S.C. 2778(f)) relating to the removal of satellites and related items from the United States Munitions List, the President shall also submit to Congress—

"(1) a determination by the President that the removal of such satellites and items from the United States Munitions List is in the national security interests of the United States; and

"(2) a report identifying and analyzing any differences between—

"(A) the recommendations and draft regulations for controlling the export, re-export, and transfer of such satellites and related items that were submitted in the report to Congress required by section 1248 of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 123 Stat. 2546); and

"(B) the final regulations under which the export, re-export, and transfer of such satellites and related items would continue to be controlled.

"(c) Prohibition.—

"(1) In general.—Subject to paragraph (3), no satellites or related items that are made subject to the Export Administration Regulations (15 CFR part 730 et seq.) as a result of the enactment of subsection (a) of this section, whether or not enumerated on the Commerce Control List—

"(A) may be exported, re-exported, or transferred, directly or indirectly, to—

"(i) any government of a country described in paragraph (2); or

"(ii) any entity or person in or acting for or on behalf of such government, entity, or person; or

"(B) may be launched in a country described in paragraph (2) or as part of a launch vehicle owned, operated, or manufactured by the government of such country or any entity or person in or acting for or on behalf of such government, entity, or person.

"(2) Countries described.—The countries referred to in paragraph (1) are the following:

"(A) The People's Republic of China.

"(B) North Korea.

"(C) Any country that is a state sponsor of terrorism.

"(3) Waiver.—The President may waive the prohibition in paragraph (1) on a case-by-case basis if not later than 30 days before doing so the President—

"(A) determines that it is in the national interest of the United States to do so; and

"(B) notifies the appropriate congressional committees of such determination.

"(d) Presumption of Denial.—Any license or other authorization to export satellites and related items to a country with respect to which the United States maintains a comprehensive arms embargo shall be subject to a presumption of denial.

"(e) Report.—

"(1) In general.—Not later than one year after the date of the enactment of this Act, and annually thereafter, the Director of National Intelligence, in consultation with the Secretary of State, shall submit to the appropriate congressional committees a report on efforts of state sponsors of terrorism, other foreign countries, or entities to illicitly acquire satellites and related items.

"(2) Form.—The report required by paragraph (1) shall be submitted in unclassified form, but may contain a classified annex.

"SEC. 1262. REPORT ON LICENSES AND OTHER AUTHORIZATIONS TO EXPORT CERTAIN SATELLITES AND RELATED ITEMS.

"(a) In General.—Not later than 60 days after the end of each calendar year through 2020, the President shall submit to the committees of Congress specified in subsection (b) a report summarizing all licenses and other authorizations to export satellites and related items that are subject to the Export Administration Regulations (15 CFR part 730 et seq.) as a result of the enactment of section 1261(a).

"(b) Committees of Congress Specified.—The committees of Congress specified in this subsection are—

"(1) the Committee on Foreign Relations, the Committee on Banking, Housing, and Urban Affairs, and the Select Committee on Intelligence of the Senate; and

"(2) the Committee on Foreign Affairs and the Permanent Select Committee on Intelligence of the House of Representatives.

"SEC. 1263. REPORT ON COUNTRY EXEMPTIONS FOR LICENSING OF EXPORTS OF CERTAIN SATELLITES AND RELATED ITEMS.

"(a) In General.—Not later than 120 days after the date of the enactment of this Act [Jan. 2, 2013], the Secretary of Commerce, in consultation with the Attorney General, the Secretary of Homeland Security, and the heads of other Federal departments and agencies as appropriate, shall submit to the appropriate congressional committees a report that contains an assessment of the extent to which the terms and conditions of exemptions for foreign countries to the licensing requirements and other authorizations to export satellites and related items that are subject to the Export Administration Regulations (15 CFR part 730 et seq.) as a result of the enactment of section 1261(a) contain strong safeguards.

"(b) Matters to Be Included.—The report required by subsection (a) shall include a description of the extent to which the terms and conditions of exemptions described in subsection (a), including other relevant laws, regulations, and practices, support law enforcement efforts to detect, prevent, and prosecute criminal, administrative, and other violations of any provision of the Export Administration Regulations (15 CFR part 730 et seq.), including efforts on the part of state sponsors of terrorism, organizations determined by the Secretary of State to have provided support for international terrorism, or other foreign countries, to acquire illicitly satellites and related items from the United States.

"SEC. 1264. END-USE MONITORING OF CERTAIN SATELLITES AND RELATED ITEMS.

"(a) In General.—In order to ensure accountability with respect to the export of satellites and related items that become subject to the Export Administration Regulations (15 CFR part 730 et seq.) as a result of the enactment of section 1261(a), the President shall provide for the end-use monitoring of such satellites and related items.

"(b) Report.—Not later than 120 days after the date of the enactment of this Act [Jan. 2, 2013], the Secretary of Commerce, in consultation with the heads of other Federal departments and agencies as appropriate, shall submit to Congress a report describing the actions taken to implement this section, including identification of resource shortfalls or other constraints on effective end-use monitoring of satellites and related items described in subsection (a).

"SEC. 1265. INTERAGENCY REVIEW OF MODIFICATIONS TO CATEGORY XV OF THE UNITED STATES MUNITIONS LIST.

"(a) In General.—Subject to section 38(f) of the Arms Export Control Act (22 U.S.C. 2778(f)), the President shall ensure that the Secretary of State, the Secretary of Defense, the Secretary of Commerce and, as appropriate, the Director of National Intelligence and the heads of other appropriate Federal departments and agencies, will review any removal or addition of an item to Category XV of the United States Munitions List (relating to spacecraft systems and associated equipment).

"(b) Effective Date.—The requirement of subsection (a) shall apply with respect to any item described in subsection (a) that is proposed to be removed or added to Category XV of the United States Munitions List on or after the date of the enactment of this Act [Jan. 2, 2013].

"SEC. 1266. RULES OF CONSTRUCTION.

"(a) In General.—Subtitle B of title XV of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law 105–261; 112 Stat. 2173; 22 U.S.C. 2778 note) shall continue to apply to satellites and related items that are subject to the Export Administration Regulations (15 CFR part 730 et seq.) as a result of the enactment of section 1261(a).

"(b) Additional Rule.—Nothing in this subtitle or any amendment made by this subtitle shall be construed as removing or limiting the authorities of the President under subsection (a) or (b) of section 1514 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) with respect to defense articles and defense services that remain subject to the jurisdiction of the International Traffic in Arms Regulations.

"SEC. 1267. DEFINITIONS.

"In this subtitle:

"(1) Appropriate congressional committees.—The term 'appropriate congressional committees' means—

"(A) the Committee on Foreign Relations, the Committee on Banking, Housing, and Urban Affairs, the Committee on Armed Services, and the Select Committee on Intelligence of the Senate; and

"(B) the Committee on Foreign Affairs, the Committee on Armed Services, and the Permanent Select Committee on Intelligence of the House of Representatives.

"(2) State sponsor of terrorism.—The term 'state sponsor of terrorism' means any country the government of which the Secretary of State has determined has repeatedly provided support for international terrorism pursuant to—

"(A) section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405) [now 50 U.S.C. 4605(j)] (as continued in effect under the International Emergency Economic Powers Act [50 U.S.C. 1701 et seq.]);

"(B) section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371);

"(C) section 40 of the Arms Export Control Act (22 U.S.C. 2780); or

"(D) any other provision of law.

"(3) United states munitions list.—The term 'United States Munitions List' means the list referred to in section 38(a)(1) of the Arms Export Control Act (22 U.S.C. 2778(a)(1))."

[Memorandum of President of the United States, Oct. 28, 2013, 78 F.R. 71985, delegated to the Secretary of State, in consultation with the heads of other executive departments and agencies, the functions of the President under section 1261(b) of Pub. L. 112–239, set out above, and to the Secretary of Commerce the functions of the President under section 1262(a) of Pub. L. 112–239, set out above.]

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 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;

"(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."

[Memorandum of President of the United States, Feb. 20, 2013, 78 F.R. 13997, delegated to the Secretary of State (1) the function of the President to make all certifications, reports, and notifications to Congress prior to entry into force of the Treaty Between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation, as well as to provide annual reports thereafter, consistent with section 2 of the Senate Resolution of Advice and Consent to Ratification of the Treaty, dated Sept. 29, 2010, and (2) the responsibility of the President, under Pub. L. 111–266, to provide congressional notification of amendments to the implementing arrangements that are made pursuant to section 105(c) of Pub. L. 111–266, set out above.]

[Memorandum of President of the United States, Mar. 6, 2012, 77 F.R. 15231, delegated to the Secretary of State, in consultation with the heads of other executive departments and agencies, (1) the function of the President to make all certifications, reports, and notifications to Congress prior to entry into force of 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, as well as to provide annual reports thereafter, consistent with section 2 of the Senate Resolution of Advice and Consent to Ratification of the Treaty, dated Sept. 29, 2010, and (2) the responsibility of the President under Pub. L. 111–266, to provide congressional notification of amendments to the Implementing Arrangements that are made pursuant to section 105(c) of Pub. L. 111–266, set out above.]

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;

"(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 Intelligence 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. 4605(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.

"(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 4604 of Title 50, 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.

"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 24-hour, 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 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 technically-qualified 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.

"(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)) [now 50 U.S.C. 3003(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 intelligence activities to Congress, including the requirement under section 501 of the National Security Act of 1947 (50 U.S.C. 413) [now 50 U.S.C. 3091].

"(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 3001 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; Pub. L. 112–239, div. A, title XII, §1261(a), Jan. 2, 2013, 126 Stat. 2018, 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;

"(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) Repealed. Pub. L. 112–239, div. A, title XII, §1261(a)(1), Jan. 2, 2013, 126 Stat. 2018.]

"(b) Defense Trade Controls Registration Fees.—[Amended section 2717 of this title.]

"(c) Effective Date.—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).

"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 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-by-State 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.

"(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 long-term 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 3001 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

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 anti-personnel 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.

"(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, as amended by Pub. L. 114–323, title VII, §715(a)(2), Dec. 16, 2016, 130 Stat. 1946, 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 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 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, biological, 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. Repealed. Pub. L. 114–323, title VII, §715(a)(2), Dec. 16, 2016, 130 Stat. 1946.]

"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.

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. 4601 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. 919, 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.

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, which is classified principally to chapter 56 (§4601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see 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 design 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, 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

For delegation of functions of the President under subsec. (b) of this section, with certain conditions, see section 1(o) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16130, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

§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. 4610(c), (d), (e), (f)], and section 12(a) of such Act [50 U.S.C. 4614(a)], subject to the same terms and conditions as are applicable to such powers under that Act [50 U.S.C. 4601 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—

(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, which is classified principally to chapter 56 (§4601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, 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 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) 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)). 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), 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)), with respect to the acquisition of any munitions item by a country described in subsection (d). 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). 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)), to any transfer of any munitions item to a country described in subsection (d). In implementing this paragraph, the United States Government shall withdraw any such consent which is in effect at the time the Secretary of State makes the determination described in subsection (d), 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). 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), 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). 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).

(B) Selling, leasing, loaning, granting, or otherwise providing any munitions item to any country described in subsection (d).

(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) if the United States person has reason to know that the munitions item will be made available to any country described in subsection (d).

(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), or any person acting on behalf of that government, if the United States person has reason to know that that 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). To the extent provided in regulations issued under subsection (l)(3)(D), 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); and

(2) the acquisition of munitions items by any individual, group, or other person within a country described in subsection (d), except to the extent that subparagraph (D) of subsection (b)(1) 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) shall be published in the Federal Register.

(f) Rescission

(1) A determination made by the Secretary of State under subsection (d) may not be rescinded unless the President submits to the Speaker of the House of Representatives, the Committee on Foreign Affairs 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;

(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) 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 __________________ 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, the Committee on Foreign Affairs 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);

(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. 3091 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. 4610(c), (e), (g), 4614(a)] (subject to the same terms and conditions as are applicable to such powers under that Act [50 U.S.C. 4601 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.

(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; Pub. L. 113–276, title II, §208(a)(1), Dec. 18, 2014, 128 Stat. 2992.)

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 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, which was formerly classified principally to chapter 15 (§401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§3001 et seq.) of Title 50. Title V of the Act is now classified generally to subchapter III (§3091 et seq.) of chapter 44 of Title 50. For complete classification of this Act to the Code, see Tables.

The Export Administration Act of 1979, referred to in subsec. (k), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, which is classified principally to chapter 56 (§4601 et seq.) of Title 50. For complete classification of this Act to the Code, see Tables.

Amendments

2014—Subsecs. (f)(1), (g)(2)(B). Pub. L. 113–276 substituted "the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and" for "the Speaker of the House of Representatives and" in introductory provisions.

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.

1989Pub. 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.

"(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.

1 So in original. Probably should be capitalized.

§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) 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

For delegation of functions of the President under this section, see section 1(q) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16130, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

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—

(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), 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.

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

Pub. L. 104–164, title I, §150(b), July 21, 1996, 110 Stat. 1437, 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

For delegation of functions of the President under this section, with certain conditions, see section 1(p) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16130, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

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 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 bal