- § 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 Repealed.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 Repealed.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
§ 2771. Military sales authorizations and ceilings
(a) Authorization for foreign military sales credit and guarantee program
(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
(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.)
§ 2772. Repealed. Pub. L. 102–429, title I, § 112(e), Oct. 21, 1992, 106 Stat. 2195
§ 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.)
§ 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.)
§ 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.)
§ 2776. Reports and certifications to Congress on military exports
(a) Report by President; contentsThe 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 informa
(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
1 See References in Text note below.
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
(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) DefinitionsFor 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 certificationsThe 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
(h) Certification requirement relating to Israel’s qualitative military edge
(1) In general
(2) Requirements with respect to determination for major defense equipmentA 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
(i) Prior notification of shipment of arms
(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.)
§ 2776a. Repealed. Pub. L. 112–81, div. A, title X, § 1062(d)(4), Dec. 31, 2011, 125 Stat. 1585
§ 2777. Fiscal provisions relating to foreign military sales credits
(a) Permissible uses of cash payments under sections 2761, 2762, 2763, and 2769
(b) Transfer of funds to miscellaneous receipts of Treasury
(c) Credit of funds to reserve under section 2764(c)
(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.)
§ 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
(d) Repealed. Pub. L. 96–70, title III, § 3303(a)(4), Sept. 27, 1979, 93 Stat. 499
(e) Enforcement powers of President
(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, the United Kingdom, or Australia 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)
(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),2
2 See References in Text note below.
(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
(i) Report to Department of State
(j) Requirements relating to country exemptions for licensing of defense items for export to foreign countries
(1) Requirement for bilateral agreement
(A) In generalThe 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
(C) Exception for defense trade cooperation treaties
(i) In generalThe 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 scopeThe 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 agreementA 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 certificationNot 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) DefinitionsIn this section:
(A) Defense items
(B) Appropriate congressional committeesThe 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
(2) Other requirementsThe 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) DefinitionIn 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.
(l) AUKUS defense trade cooperation
(1) Determination and certification
(A) In generalNot later than 120 days after December 22, 2023, the President shall determine and certify in writing, and include a detailed justification, to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives whether Australia or the United Kingdom has—
(i) implemented a system of export controls comparable to those of the United States that satisfies the elements of subsection (j)(2)(A)(i), (ii), (iii), and (iv) and subsection (j)(2)(B)(i), (ii) and (v) for United States-origin defense articles and defense services, and for controlling the provision of military training; and
(ii) implemented a comparable exemption from its export controls for the United States.
(B) Matters to be included
(i) Requirements met
(ii) Requirements not metIf the President makes a determination that Australia or the United Kingdom does not meet the comparability standards of clauses (i) and (ii) of subparagraph (A), the justification required by such subparagraph shall include, as applicable—(I) the specific elements of either such clause (i) or (ii) that were determined not to meet the comparability standards;(II) the specific actions the country needs to take in order to meet the comparability standards; and(III) the actions the United States is taking, as appropriate, to facilitate that the country is granted an exemption in a timely manner upon meeting the comparability standards.
(C) Form
(2) Exemption
(3) Reassessment
(A) In generalIf the President is unable to make a determination that Australia or the United Kingdom has met the comparability standards of clauses (i) and (ii) of paragraph (1)(A) or suspends the exemption pursuant to paragraph (5), the President shall—
(i) not less frequently than once every 120 days reassess whether the country has met those requirements;
(ii) report the results of such reassessment in writing, and include a detailed justification, to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives; and
(iii) report on steps the country must take to establish the exemption.
(B) Positive reassessment
(C) Negative reassessmentIf the President finds in any reassessment under subparagraph (A) that Australia or the United Kingdom has not met the comparability standards of clauses (i) and (ii) of paragraph (1)(A), the written reassessment shall include, as applicable—
(i) the specific elements of either such clauses that were determined not to be comparable;
(ii) the specific actions the country needs to take in order to meet the comparability standards; and
(iii) the actions the United States is taking, as appropriate, to facilitate that the country is granted an exemption in a timely manner upon meeting the comparability standards.
(D) Form
(4) LimitationAn exemption described in paragraph (2) shall not apply to any activity (including exports, transfers, reexports, retransfers, temporary imports, or brokering) of defense articles and defense services between or among the United States, the United Kingdom, and Australia that—
(A) are excluded by those countries;
(B) are referred to in subsection (j)(1)(C)(ii); or
(C) involve individuals or entities that are not approved by—
(i) the Secretary of State; and
(ii) the Ministry of Defense, the Ministry of Foreign Affairs, or other similar authority within those countries.
(5) Temporary suspension of exemption
(A) In generalThe President may suspend an exemption described in paragraph (2) with respect to Australia or the United Kingdom if the President determines and certifies in writing, and includes a detailed justification, to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives that—
(i) the country has ceased to implement a system of export controls comparable to those of the United States that satisfies the elements of subsection (j)(2)(A)(i), (ii), (iii), and (iv) and subsection (j)(2)(B)(i), (ii) and (v) for United States-origin defense articles and defense services, and for controlling the provision of military training; and
(ii) due to a substantial change in circumstance, the suspension is necessary to protect the vital national security or foreign policy interests of the United States in relation to the country concerned; or
(iii) the country concerned has ceased to implement a comparable exemption from its export controls for the United States.
(B) Additional matter to be included
(C) Form
(D) Report
(6) Certain requirements not applicable
(A) In general
(B) Quarterly reportsThe Secretary of State shall—
(i) require all exports and transfers that would be subject to the requirements of paragraphs (1), (2), and (3) of section 2753(d) of this title but for the application of subparagraph (A) to be reported to the Secretary; and
(ii) submit such reports to the Committee on Foreign Relations of the Senate and Committee on Foreign Affairs of the House of Representatives on a quarterly basis.
(7) Sunset
(A) In general
(B) Renewal
(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; Pub. L. 117–263, div. I, title XCVII, § 9708, Dec. 23, 2022, 136 Stat. 3918; Pub. L. 118–31, div. A, title XIII, §§ 1343(a), 1345(a), Dec. 22, 2023, 137 Stat. 510, 514.)
§ 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.
(Pub. L. 96–533, title I, § 110, Dec. 16, 1980, 94 Stat. 3138.)
§ 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
(c) Allocation to contract; improper influence
(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.)
§ 2779a. Prohibition on incentive payments
(a) In general
(b) Civil penalties
(c) Presidential authority
(d) DefinitionsFor 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.)
§ 2780. Transactions with countries supporting acts of international terrorism
(a) Prohibited transactions by United States GovernmentThe 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 generalA 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.
(3) Applicability to actions outside the United States
(c) Transfers to governments and persons coveredThis 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
(e) Publication of determinations
(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) WaiverThe 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
(i) Relation to other laws
(1) In general
(2) Section 614(a) waiver authority
(j) Criminal penalty
(k) Civil penalties; enforcement
(l) DefinitionsAs used in this section—
(1) the term “munitions item” means any item enumerated on the United States Munitions list 2
2 So in original. Probably should be capitalized.
(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.)
§ 2781. Transactions with countries not fully cooperating with United States antiterrorism efforts
(a) Prohibited transactions
(b) Waiver
(Pub. L. 90–629, ch. 3, § 40A, as added Pub. L. 104–132, title III, § 330, Apr. 24, 1996, 110 Stat. 1258.)