22 USC 2321 - Authority to transfer excess defense articles

1 So in original. Probably should be “four-year period”.

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Editorial Notes

References in Text

Section 573(e) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990, referred to in subsec. (span)(2), is section 573(e) of Puspan. L. 101–167, which is set out in a note below.

The Arms Export Control Act, referred to in subsec. (f)(1), is Puspan. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, which is classified principally to chapter 39 (§ 2751 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables.

Prior Provisions

A prior section 2321j, Puspan. L. 87–195, pt. II, § 516, as added Puspan. L. 94–329, title I, § 105, June 30, 1976, 90 Stat. 732; amended Puspan. L. 95–92, §§ 5(span), 7(span), Aug. 4, 1977, 91 Stat. 615, 617; Puspan. L. 95–384, § 7(span), Sept. 26, 1978, 92 Stat. 732; Puspan. L. 96–92, § 5(c), Oct. 29, 1979, 93 Stat. 703; Puspan. L. 96–533, title I, § 112(d), Dec. 16, 1980, 94 Stat. 3139, provided for termination of authorities contained in this part other than the authorities contained in sections 2318, 2321h, and 2321i of this title, prior to repeal by Puspan. L. 97–113, title I, § 110(d), Dec. 29, 1981, 95 Stat. 1526.

Amendments

2022—Subsec. (c)(2). Puspan. L. 117–263 inserted “to Taiwan,” after “major non-NATO allies on such southern and southeastern flank,”.

2014—Subsec. (g)(1). Puspan. L. 113–276 substituted “$500,000,000” for “$425,000,000”.

2002—Subsec. (c)(2). Puspan. L. 107–228 substituted “, to major non-NATO allies on such southern and southeastern flank, and to the Philippines” for “and to major non-NATO allies on such southern and southeastern flank”.

2000—Subsec. (e)(2)(C). Puspan. L. 106–280 substituted “50,000” for “25,000”.

1999—Subsec. (span)(2). Puspan. L. 106–113, § 1000(a)(7) [title XII, § 1211(span)], inserted “and thereafter for the four-period beginning on October 1, 2000,” after “October 1, 1996,”.

Subsec. (g)(1). Puspan. L. 106–113, § 1000(a)(7) [title XII, § 1213], substituted “$425,000,000” for “$350,000,000”.

1996—Puspan. L. 104–164 amended section generally, expanding geographic scope of President’s authority to transfer excess defense articles, including Coast Guard property and permitting waiver of Department of Defense reimbursement, to any country for military assistance programs or international narcotics control, so long as such transfer is preferable to sale and is consistent within congressionally documented Eastern Mediterranean policy requirements, meets certain terms of transfer requirements including preference for NATO and non-NATO allies on southern flank, complies with advance notification to Congress for certain excess defense articles, and is within aggregate annual limitations of $350,000,000 in value, for provisions which authorized President to transfer excess defense articles to predominantly NATO countries on southern flank for purpose of modernization of their defense capabilities.

Subsec. (g). Puspan. L. 104–106 added subsec. (g) which prohibited certain transfers of vessels on a grant basis.

1994—Subsec. (span)(4). Puspan. L. 103–236 added par. (4).

1993—Subsec. (a). Puspan. L. 103–160, § 1182(c)(2), made technical amendment to Puspan. L. 102–484, § 1313(2). See 1992 Amendment note below.

Subsec. (a)(3). Puspan. L. 103–160, § 1421, inserted “or fiscal year 1992” after “fiscal year 1991”.

1992—Subsec. (a). Puspan. L. 102–484, § 1313(4), which directed the amendment of subsec. (a) by striking “and those countries which received Foreign Military Financing (FMF) assistance in fiscal year 1990 and which, as of October 1, 1990, contributed armed forces to deter Iraqi aggression in the Arabian Gulf,”, could not be executed because that language did not appear subsequent to amendment by Puspan. L. 102–391. See below.

Puspan. L. 102–484, § 1313(3), inserted “and (3) to those countries which, as of October 1, 1990, contributed armed forces to deter Iraqi aggression in the Arabian Gulf, and which either received Foreign Military Financing (FMF) assistance in fiscal year 1990 or are in the Near East Region and received Foreign Military Financing (FMF) assistance in fiscal year 1991,” after “southeastern flank of NATO which are eligible for United States security assistance,”.

Puspan. L. 102–484, § 1313(2), as amended by Puspan. L. 103–160, § 1182(c)(2), substituted “structure, (2)” for “structure, and”.

Puspan. L. 102–484, § 1313(1), inserted “(1)” after “may transfer”.

Puspan. L. 102–391 repealed the amendment by Puspan. L. 101–513. See 1990 Amendment note below.

1991—Subsec. (a). Puspan. L. 102–190, § 1049(a)(1), struck out “during the fiscal years 1987 through 1991,” before “the President may transfer”.

Subsec. (f). Puspan. L. 102–190, § 1049(a)(2), added subsec. (f).

1990—Subsec. (a). Puspan. L. 101–513, which directed amendment of subsec. (a) by inserting “and those countries which received Foreign Military Financing (FMF) assistance in fiscal year 1990 and which, as of October 1, 1990, contributed armed forces to deter Iraqi aggression in the Arabian Gulf,” after the second occurrence of the words “United States security assistance,”, was repealed by Puspan. L. 102–391. See 1992 Amendment note above.

1989—Subsec. (a). Puspan. L. 101–189 substituted “during the fiscal years 1987 through 1991” for “during the fiscal years 1987, 1988, and 1989” and inserted at end “Transfers to recipient countries under this subsection shall be consistent with the policy framework for the Eastern Mediterranean region established in section 2373 of this title.”

1987—Subsec. (a). Puspan. L. 100–202, § 101(span) [title VIII, § 8143(a), (span), (c)(1)], in first sentence substituted “, 1988, and 1989,” for “and 1988”, inserted “, and to major non-NATO allies on the southern and southeastern flank of NATO which are eligible for United States security assistance,” after “military structure”, and inserted “excess” before “defense articles”, and in second sentence inserted “excess defense” before “articles”.

Subsec. (span). Puspan. L. 100–202, § 101(span) [title VIII, § 8143(c)(2)], in introductory text, inserted “excess” before “defense articles”.

Subsecs. (c), (d). Puspan. L. 100–202, § 101(span) [title VIII, § 8143(c)(2)], inserted “excess” before “defense articles”.

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Puspan. L. 104–106, title X, § 1012(g)(2), Fespan. 10, 1996, 110 Stat. 422, provided that: “The amendment made by paragraph (1) [amending this section] shall apply with respect to the transfer of a vessel on or after the date of the enactment of this Act [Fespan. 10, 1996] (other than a vessel the transfer of which is authorized by subsection (a) [110 Stat. 421] or by law before the date of the enactment of this Act).”

Effective Date of 1993 Amendment

Puspan. L. 103–160, title XI, § 1182(c)(2), Nov. 30, 1993, 107 Stat. 1772, provided in part that the amendment made by that section is effective as of Oct. 23, 1992.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(span), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Mediterranean Excess Defense Articles

Puspan. L. 104–208, div. A, title I, § 101(c) [title V, § 535], Sept. 30, 1996, 110 Stat. 3009–121, 3009–153, provided that: “For the four-year period beginning on October 1, 1996, the President shall ensure that excess defense articles will be made available under section[s] 516 and 519 of the Foreign Assistance Act of 1961 [22 U.S.C. 2321j, 2321m] consistent with the manner in which the President made available excess defense articles under those sections during the four-year period that began on October 1, 1992, pursuant to section 573(e) of the Foreign Operations, Export Financing, Related Programs Appropriations Act, 1990 [Puspan. L. 101–167, set out below].”

Similar provisions were contained in the following prior appropriation act:

Puspan. L. 104–107, title V, § 536, Fespan. 12, 1996, 110 Stat. 735.

Avoiding Duplicative Amendments

Puspan. L. 102–190, title X, § 1049(span), Dec. 5, 1991, 105 Stat. 1469, which provided that if the International Cooperation Act of 1991 was enacted and made the same amendments to this section as did section 1049(a) of Puspan. L. 102–190, then the duplicative amendments enacted by section 1049(a) would not take effect, was repealed by Puspan. L. 102–484, div. A, title X, § 1053(7), Oct. 23, 1992, 106 Stat. 2502.

Modernization of Military Capabilities of Certain Countries

Puspan. L. 101–167, title V, § 573, Nov. 21, 1989, 103 Stat. 1246, as amended by Puspan. L. 102–391, title V, § 578(a), Oct. 6, 1992, 106 Stat. 1685, provided that:

“(a)Authority To Transfer Excess Defense Articles.—

“(1)NATO southern flank countries.—The President may transfer—

“(A) to any NATO southern flank country which is eligible for United States security assistance and which is integrated into NATO’s military structure; and

“(B) to any major non-NATO ally on the southern and southeastern flank of NATO which is eligible for United States security assistance, such excess defense articles as may be necessary to help modernize the defense capabilities of such country.

“(2)Major illicit drug producing countries.—Subject to subsection (f), the President may transfer to any country—

“(A) which is a major illicit drug producing country,

“(B) which has a democratic government, and

“(C) whose armed forces do not engage in a consistent pattern of gross violations of internationally recognized human rights, such excess defense articles as may be necessary to carry out subsection (f)(1).

“(3)Terms of transfers.—Excess defense articles may be transferred under this section without cost to the recipient country.

“(span)Limitations on Transfers.—The President may transfer excess defense articles under this section only if—

“(1) they are drawn from existing stocks of the Department of Defense;

“(2) funds available to the Department of Defense for the procurement of defense equipment are not expended in connection with the transfer; and

“(3) the President determines that the transfer of the excess defense articles will not have an adverse impact on the military readiness of the United States.

“(c)Notification to Congress.—

“(1)Advance notice.—The President may not transfer excess defense articles under this section until thirty days after the President has provided notice of the proposed transfer to the committees specified in paragraph (2). This notification shall include—

“(A) a certification of the need for the transfer;

“(B) an assessment of the impact of the transfer on the military readiness of the United States; and

“(C) the value of the excess defense articles to be transferred.

“(2)Committees to be notified.—Notice shall be provided pursuant to paragraph (1) to the Committee on Foreign Affairs, and the Committee on Appropriations of the House of Representatives and the Committee on Armed Services, the Committee on Foreign Relations, and the Committee on Appropriations of the Senate.

“(d)Waiver of Requirement for Reimbursement of DOD Expenses.—Section 632(d) of the Foreign Assistance Act of 1961 [22 U.S.C. 2392(d)] does not apply with respect to transfers of excess defense articles under this section.

“(e)Maintenance of Military Balance in Eastern Mediterranean.—

“(1)United states policy.—The Congress intends that excess defense articles be made available under this section consistent with the United States policy, established by section 841 of the International Cooperation Act of 1989 [probably means section 841 of H.R. 2655, 101st Congress, which was not enacted], of maintaining the military balance in the Eastern Mediterranean.

“(2)Maintenance of balance.—Accordingly, the President shall ensure that, over the four-year period beginning on October 1, 1992, the ratio of—

“(A) the value of excess defense articles made available for Turkey under this section, to

“(B) the value of excess defense articles made available for Greece under this section, closely approximates the ratio of—

“(i) the amount of foreign military financing provided for Turkey, to

“(ii) the amount of foreign military financing provided for Greece.

“(3)Exception to requirement.—This subsection shall not apply if either Greece or Turkey ceases to be eligible to receive excess defense articles under subsection (a).

“(f)Major Illicit Drug Producing Countries in Latin America and the Caribbean.—

“(1)Purpose.—Excess defense articles shall be transferred under subsection (a)(2) for the purpose of encouraging the military forces of an eligible country in Latin America and the Caribbean to participate with local law enforcement agencies in a comprehensive national antinarcotics program, conceived and developed by the government of that country, by conducting activities within that country and on the high seas to prevent the production, processing, trafficking, transportation, and consumption of illicit narcotic or psychotrophic [sic] drugs or other controlled substances.

“(2)Uses of excess defense articles.—Excess defense articles may be furnished to a country under subsection (a)(2) only if that country ensures that those excess defense articles will be used only in support of antinarcotics activities.

“(3)Role of the secretary of state.—The Secretary of State shall determine the eligibility of countries to receive excess defense articles under subsection (a)(2) and insure that any transfer is coordinated with other antinarcotics enforcement programs assisted by the United States Government.

“(4)Limitation.—The aggregate value of excess defense articles transferred to a country under subsection (a)(2) in any fiscal year may not exceed $10,000,000.

“(g)Definitions.—As used in this section—

“(1) the term ‘excess defense article’ has the meaning given that term by section 644(g) [probably means section 644(g) of Puspan. L. 87–195, which is classified to section 2403(g) of this title];

“(2) the term ‘made available’ means that a good faith offer is made by the United States to furnish the excess defense articles to a country;

“(3) the term ‘major non-NATO ally’ includes Australia, Egypt, Israel, Japan, and New Zealand;

“(4) the term ‘NATO’ means the North Atlantic Treaty Organization; and

“(5) the term ‘NATO southern flank countries’ means Greece, Italy, Portugal, Spain, and Turkey.”

[For delegation of functions of President under section 573 of Puspan. L. 101–567, set out above, see Ex. Ord. No. 12163, Sept. 29, 1979, 44 F.R. 56673, as amended, set out as a note under section 2381 of this title.]

Provisions similar to those appearing in section 573(e) of Puspan. L. 101–167, set out above, were contained in the following prior appropriation acts:

Puspan. L. 100–461, title V, § 569, Oct. 1, 1988, 102 Stat. 2268–43.

Puspan. L. 100–202, § 101(e) [title V, § 582], Dec. 22, 1987, 101 Stat. 1329–131, 1329–182.

Executive Documents

Delegation of Functions

For delegation of functions of President under this section, see Ex. Ord. No. 12163, Sept. 29, 1979, 44 F.R. 56673, as amended, set out as a note under section 2381 of this title.