22 USC CHAPTER 39, SUBCHAPTER IV: GENERAL, ADMINISTRATIVE, AND MISCELLANEOUS PROVISIONS

From Title 22—FOREIGN RELATIONS AND INTERCOURSECHAPTER 39—ARMS EXPORT CONTROL

SUBCHAPTER IV—GENERAL, ADMINISTRATIVE, AND MISCELLANEOUS PROVISIONS

§2791. General provisions

(a) Considerations in procurement outside United States

In carrying out this chapter, special emphasis shall be placed on procurement in the United States, but, subject to the provisions of subsection (b) of this section, consideration shall also be given to coproduction or licensed production outside the United States of defense articles of United States origin when such production best serves the foreign policy, national security, and economy of the United States. In evaluating any sale proposed to be made pursuant to this chapter, there shall be taken into consideration (A) the extent to which the proposed sale damages or infringes upon licensing arrangements whereby United States entities have granted licenses for the manufacture of the defense articles selected by the purchasing country to entities located in friendly foreign countries, which licenses result in financial returns to the United States, (B) the portion of the defense articles so manufactured which is of United States origin, and (C) whether, and the extent to which, such sale might contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements.

(b) Information to Congress on credit sales and guaranties

No credit sale shall be extended under section 2763 of this title, and no guarantee shall be issued under section 2764 of this title, in any case involving coproduction or licensed, production outside the United States of any defense article of United States origin unless the Secretary of State shall, in advance of any such transaction, advise the appropriate committees of the Congress and furnish the Speaker of the House of Representatives and the President of the Senate with full information regarding the proposed transaction, including, but not limited to, a description of the particular defense article or articles which would be produced under a license or coproduced outside the United States, the estimated value of such production or coproduction, and the probable impact of the proposed transaction on employment and production within the United States.

(c) Availability of funds for procurement outside United States

Funds made available under this chapter may be used for procurement outside the United States only if the President determines that such procurement will not result in adverse effects upon the economy of the United States or the industrial mobilization base, with special reference to any areas of labor surplus or to the net position of the United States in its balance of payments with the rest of the world, which outweigh the economic or other advantages to the United States of less costly procurement outside the United States.

(d) Responsibility of Secretary of Defense with respect to sales and guaranties

(1) With respect to sales and guaranties under sections 2761, 2762, 2763, 2764, 2769 and 2770 of this title, the Secretary of Defense shall, under the direction of the President, have primary responsibility for—

(A) the determination of military end-item requirements;

(B) the procurement of military equipment in a manner which permits its integration with service programs;

(D) the movement and delivery of military end-items; and

(E) within the Department of Defense, the performance of any other functions with respect to sales and guaranties.

(2) The establishment of priorities in the procurement, delivery, and allocation of military equipment shall, under the direction of the President, be determined by the Secretary of Defense.

(e) Revocation and suspension provisions of contracts for sale and export licenses; appropriations for refunds

(1) Each contract for sale entered into under sections 2761, 2762, 2769 and 2770 of this title, and each contract entered into under section 2767(d) of this title, shall provide that such contract may be canceled in whole or in part, or its execution suspended, by the United States at any time under unusual or compelling circumstances if the national interest so requires.

(2)(A) Each export license issued under section 2778 of this title shall provide that such license may be revoked, suspended, or amended by the Secretary of State, without prior notice, whenever the Secretary deems such action to be advisable.

(B) Nothing in this paragraph may be construed as limiting the regulatory authority of the President under this chapter.

(3) There are authorized to be appropriated from time to time such sums as may be necessary (A) to refund moneys received from purchasers under contracts of sale entered into under sections 2761, 2762, 2769 and 2770 of this title, or under contracts entered into under section 2767(d) of this title, that are canceled or suspended under this subsection to the extent such moneys have previously been disbursed to private contractors and United States Government agencies for work in progress, and (B) to pay such damages and costs that accrue from the corresponding cancellation or suspension of the existing procurement contracts or United States Government agency work orders involved.

(f) Use of civilian contract personnel in foreign countries

The President shall, to the maximum extent possible and consistent with the purposes of this chapter, use civilian contract personnel in any foreign country to perform defense services sold under this chapter.

(Pub. L. 90–629, ch. 4, §42, Oct. 22, 1968, 82 Stat. 1326; Pub. L. 92–226, pt. IV, §401(e), (f), Feb. 7, 1972, 86 Stat. 33; Pub. L. 94–141, title I, §150(b), Nov. 29, 1975, 89 Stat. 760; Pub. L. 94–329, title II, §213, title VI, §605(b), June 30, 1976, 90 Stat. 745, 768; Pub. L. 96–533, title I, §105(e)(3), Dec. 16, 1980, 94 Stat. 3135; Pub. L. 97–392, §2, Dec. 29, 1982, 96 Stat. 1963; Pub. L. 99–83, title I, §115(b)(3), Aug. 8, 1985, 99 Stat. 201; Pub. L. 99–145, title XI, §1102(a)(4), (5), Nov. 8, 1985, 99 Stat. 710; Pub. L. 99–661, div. A, title XIII, §1342(e), Nov. 14, 1986, 100 Stat. 3991; Pub. L. 103–236, title VII, §714(a)(2), Apr. 30, 1994, 108 Stat. 497; Pub. L. 105–277, div. G, subdiv. A, title XII, §1225(a)(3), Oct. 21, 1998, 112 Stat. 2681–773.)

Editorial Notes

References in Text

This chapter, referred to in text, was in the original "this Act", meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables.

Amendments

1998—Subsec. (a). Pub. L. 105–277 struck out par. (1) designation, struck out "the assessment of the Director of the United States Arms Control and Disarmament Agency as to" after ", and (C)", and struck out par. (2) which read as follows: "Any proposed sale made pursuant to this chapter shall be approved only after consultation with the Director of the United States Arms Control and Disarmament Agency. The Director of the Arms Control and Disarmament Agency is authorized, whenever the Director determines that a sale under this section would be detrimental to the national security of the United States, to recommend to the President that such sale be disapproved."

1994—Subsec. (a). Pub. L. 103–236 designated existing provisions as par. (1), redesignated former cls. (1) to (3) as cls. (A) to (C), respectively, amended cl. (C) generally, and added par. (2). Prior to being amended generally, cl. (C) read as follows: "in coordination with the Director of the United States Arms Control and Disarmament Agency, the Director's opinion as to the extent to which such sale might contribute to an arms race, or increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control arrangements."

1986—Subsec. (e)(1), (3). Pub. L. 99–661 repealed section 1102(a)(4) of Pub. L. 99–145 and the amendments made by that section, and provided that this section shall apply as if that section had never been enacted. See 1985 Amendments note below.

1985—Subsec. (e)(1), (3). Pub. L. 99–83 inserted reference to contracts under section 2767(d) of this title.

Pub. L. 99–145, §1102(a)(4), which enacted amendments similar to those provided in Pub. L. 99–83, was repealed. See 1986 Amendments note below and former section 1102(a)(5) of Pub. L. 99–145 set out as a Repeals; Effective Date note under section 2752 of this title.

1982—Subsecs. (d)(1), (e)(1), (3)(A). Pub. L. 97–392 substituted "2769 and 2770" for "and 2769".

1980—Subsecs. (d)(1), (e)(1), (3). Pub. L. 96–533, §105(e)(3), inserted reference to section 2769 of this title.

1976—Subsec. (e). Pub. L. 94–329, §213, added subsec. (e).

Subsec. (f). Pub. L. 94–329, §605(b), added subsec. (f).

1975—Subsec. (a)(3). Pub. L. 94–141 inserted provision relating to coordination with the Director of the United States Arms Control and Disarmament Agency.

1972—Subsec. (a). Pub. L. 92–226, §401(e), (f)(1), added cl. (3) and inserted ", subject to the provisions of subsection (b) of this section," before "consideration shall also be given", respectively.

Subsecs. (b) to (d). Pub. L. 92–226, §401(f)(2), added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d).

Statutory Notes and Related Subsidiaries

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–277 effective Apr. 1, 1999, see section 1201 of Pub. L. 105–277, set out as an Effective Date note under section 6511 of this title.

Effective Date of 1985 Amendment

Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.

Effective Date

Section effective July 1, 1968, see section 41 of Pub. L. 90–629, set out as a note under section 2751 of this title.

Executive Documents

Delegation of Functions

For delegation of functions of the President under subsecs. (c) and (f) of this section, with certain conditions, see section 1(r) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16131, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637.

§2792. Administrative expenses

(a) Availability of funds

Funds made available under other law for the operations of United States Government agencies carrying out functions under this chapter shall be available for the administrative expenses incurred by such agencies under this chapter.

(b) Charges for administrative expenses and official reception and representation expenses

Charges for administrative services calculated under section 2761(e)(1)(A) of this title shall include recovery of administrative expenses and official reception and representation expenses incurred by any department or agency of the United States Government, including any mission or group thereof, in carrying out functions under this chapter when—

(1) such functions are primarily for the benefit of any foreign country;

(2) such expenses are not directly and fully charged to, and reimbursed from amounts received for, sale of defense services under section 2761(a) of this title; and

(3) such expenses are neither salaries of the Armed Forces of the United States nor represent unfunded estimated costs of civilian retirement and other benefits.

(c) Limitations on funds used for official reception and representation expenses

Not more than $86,500 of the funds derived from charges for administrative services pursuant to section 2761(e)(1)(A) of this title may be used each fiscal year for official reception and representation expenses.

(Pub. L. 90–629, ch. 4, §43, Oct. 22, 1968, 82 Stat. 1327; Pub. L. 94–329, title II, §214, June 30, 1976, 90 Stat. 746; Pub. L. 95–92, §7(d), Aug. 4, 1977, 91 Stat. 617; Pub. L. 96–92, §19(b), Oct. 29, 1979, 93 Stat. 709; Pub. L. 97–113, title VII, §734(a)(10), Dec. 29, 1981, 95 Stat. 1560; Pub. L. 99–83, title I, §120, Aug. 8, 1985, 99 Stat. 204; Pub. L. 101–165, title IX, §9104(b)(1), Nov. 21, 1989, 103 Stat. 1152; Pub. L. 107–228, div. B, title XII, §1203, Sept. 30, 2002, 116 Stat. 1427.)

Editorial Notes

References in Text

This chapter, referred to in subsecs. (a) and (b), was in the original "this Act", meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables.

Amendments

2002—Subsec. (c). Pub. L. 107–228 substituted "$86,500" for "$72,500".

1989—Subsec. (b)(3). Pub. L. 101–165 added par. (3).

1985—Subsec. (b). Pub. L. 99–83, §120(1), inserted "and official reception and representation expenses".

Subsec. (c). Pub. L. 99–83, §120(2), added subsec. (c).

1981—Subsec. (c). Pub. L. 97–113 struck out subsec. (c) which required a Presidential report to Congress no later than Jan. 15 of each year containing analysis and description of Federal personnel arms export control services performed previous fiscal year. See section 2765(a)(6) of this title.

1979—Subsec. (c). Pub. L. 96–92 added subsec. (c).

1977—Subsec. (b). Pub. L. 95–92 substituted provisions relating to criteria for recovery of charges for administrative expenses calculated under section 2761(e)(1)(A) of this title, for provisions relating to reimbursement from amounts received for sales under sections 2761 and 2762 of this title of administrative expenses incurred by a United States government department or agency in carrying out functions under this chapter for the benefit of any foreign country.

1976—Pub. L. 94–329 designated existing provisions as subsec. (a) and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 1985 Amendment

Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.

Effective Date

Section effective July 1, 1968, see section 41 of Pub. L. 90–629, set out as a note under section 2751 of this title.

§2793. Other provisions unaffected

No provision of this chapter shall be construed as modifying in any way the provisions of the Atomic Energy Act of 1954, as amended [42 U.S.C. 2011 et seq.], or section 8677 of title 10.

(Pub. L. 90–629, ch. 4, §44, Oct. 22, 1968, 82 Stat. 1327; Pub. L. 115–232, div. A, title VIII, §809(f), Aug. 13, 2018, 132 Stat. 1842.)

Editorial Notes

References in Text

The Atomic Energy Act of 1954, as amended, referred to in text, is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, §1, 68 Stat. 919, which is classified principally to chapter 23 (§2011 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of Title 42 and Tables.

Amendments

2018—Pub. L. 115–232 substituted "section 8677 of title 10" for "section 7307 of title 10".

Statutory Notes and Related Subsidiaries

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of Title 10, Armed Forces.

Effective Date

Section effective July 1, 1968, see section 41 of Pub. L. 90–629, set out as a note under section 2751 of this title.

Specific Application of Other Provisions to this Chapter

Except for laws specified in this section, other provisions inapplicable to this chapter without a specific reference thereto or to sales of defense articles and defense services under any Act, see section 45(c) of Pub. L. 90–629, set out as a note under section 2751 of this title.

§2794. Definitions

For purposes of this chapter, the term—

(1) "excess defense article" has the meaning provided by section 2403(g) of this title;

(2) "value" means, in the case of an excess defense article, except as otherwise provided in section 2761(a) of this title, not less than the greater of—

(A) the gross cost incurred by the United States Government in repairing, rehabilitating, or modifying such article, plus the scrap value; or

(B) the market value, if ascertainable;

(3) "defense article", except as provided in paragraph (7) of this section, means, with respect to a sale or transfer by the United States under the authority of this chapter or any other foreign assistance or sales program of the United States—

(A) any weapon, weapons system, munition, aircraft, vessel, boat, or other implement of war,

(B) any property, installation, commodity, material, equipment, supply, or goods used for the purposes of making military sales,

(C) any machinery, facility, tool, material, supply, or other item necessary for the manufacture, production, processing, repair, servicing, storage, construction, transportation, operation, or use of any article listed in this paragraph, and

(D) any component or part of any article listed in this paragraph,

but does not include merchant vessels or (as defined by the Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.]) source material (except uranium depleted in the isotope 235 which is incorporated in defense articles solely to take advantage of high density or pyrophoric characteristics unrelated to radioactivity), byproduct material, special nuclear material, production facilities, utilization facilities, or atomic weapons or articles involving Restricted Data;

(4) "defense service", except as provided in paragraph (7) of this section, means, with respect to a sale or transfer by the United States under the authority of this chapter or any other foreign assistance or sales program of the United States, any service, test, inspection, repair, training, publication, technical or other assistance, or defense information (as defined in section 2403(e) of this title), used for the purposes of making military sales, but does not include design and construction services under section 2769 of this title;

(5) "training" includes formal or informal instruction of foreign students in the United States or overseas by officers or employees of the United States, contract technicians, or contractors (including instruction at civilian institutions), or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice to foreign military units and forces;

(6) "major defense equipment" means any item of significant military equipment on the United States Munitions List having a nonrecurring research and development cost of more than $50,000,000 or a total production cost of more than $200,000,000;

(7) "defense articles and defense services" means, with respect to commercial exports subject to the provisions of section 2778 of this title, those items designated by the President pursuant to subsection (a)(1) of such section;

(8) "design and construction services" means, with respect to sales under section 2769 of this title, the design and construction of real property facilities, including necessary construction equipment and materials, engineering services, construction contract management services relating thereto, and technical advisory assistance in the operation and maintenance of real property facilities provided or performed by any department or agency of the Department of Defense or by a contractor pursuant to a contract with such department or agency;

(9) "significant military equipment" means articles—

(A) for which special export controls are warranted because of the capacity of such articles for substantial military utility or capability; and

(B) identified on the United States Munitions List;

(10) "weapons of mass destruction" has the meaning provided by section 2302(1) of title 50; and

(11) "Sales territory" means a country or group of countries to which a defense article or defense service is authorized to be reexported.

(Pub. L. 90–629, ch. 4, §47, as added Pub. L. 93–189, §25(12), Dec. 17, 1973, 87 Stat. 731; amended Pub. L. 94–329, title II, §215, June 30, 1976, 90 Stat. 746; Pub. L. 96–92, §22, Oct. 29, 1979, 93 Stat. 710; Pub. L. 96–533, title I, §105(f), Dec. 16, 1980, 94 Stat. 3135; Pub. L. 99–83, title I, §107(b), title XII, §1211(b)(3), Aug. 8, 1985, 99 Stat. 197, 279; Pub. L. 104–164, title I, §144, July 21, 1996, 110 Stat. 1434; Pub. L. 107–228, div. B, title XII, §1202(b), title XIV, §1405(a)(4), Sept. 30, 2002, 116 Stat. 1427, 1458; Pub. L. 113–276, title II, §§207, 208(b)(1)(B), Dec. 18, 2014, 128 Stat. 2992, 2993.)

Editorial Notes

References in Text

The Atomic Energy Act of 1954, referred to in par. (3), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, §1, 68 Stat. 919, which is classified principally to chapter 23 (§2011 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of Title 42 and Tables.

Amendments

2014—Par. (2). Pub. L. 113–276, §208(b)(1)(B), substituted "2761(a) of this title," for "2761(a) of this title,," in introductory provisions.

Par. (3). Pub. L. 113–276, §207(1), in introductory provisions, substituted "means, with respect to a sale or transfer by the United States under the authority of this chapter or any other foreign assistance or sales program of the United States—" for "includes—".

Par. (4). Pub. L. 113–276, §207(2), substituted "means, with respect to a sale or transfer by the United States under the authority of this chapter or any other foreign assistance or sales program of the United States," for "includes".

2002—Par. (10). Pub. L. 107–228, §1202(b), added par. (10).

Par. (11). Pub. L. 107–228, §1405(a)(4), added par. (11).

1996—Par. (9). Pub. L. 104–164 added par. (9).

1985—Par. (2). Pub. L. 99–83, §107(b), inserted ", except as otherwise provided in section 2761(a) of this title,".

Par. (6). Pub. L. 99–83, §1211(b)(3), substituted "military" for "combat".

1980—Par. (4). Pub. L. 96–533, §105(f)(1), excluded from term "defense service" design and construction services under section 2769 of this title.

Par. (8). Pub. L. 96–533, §105(f)(2)–(4), added par. (8).

1979—Par. (3). Pub. L. 96–92 defined "defense article" to include uranium depleted in the isotope 235 which is incorporated in defense articles solely to take advantage of high density or pyrophoric characteristics unrelated to radioactivity.

1976—Pars. (3) to (7). Pub. L. 94–329 added pars. (3) to (7).

Statutory Notes and Related Subsidiaries

Effective Date of 1985 Amendment

Amendment by Pub. L. 99–83 effective Oct. 1, 1985, see section 1301 of Pub. L. 99–83, set out as a note under section 2151–1 of this title.