22 U.S.C. § 2779 — Fees of military sales agents

Page 1263 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2779 (Pub. L. 96–533, title I, § 110, Dec. 16, 1980, 94 Stat. 3138.) Editorial Notes REFERENCES IN TEXT The Atomic Energy Act of 1954, referred to in text, is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified principally to chapter 23 (§ 2011 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 2011 of Title 42 and Tables. The Nuclear Non-Proliferation Act of 1978, referred to in text, is Pub. L. 95–242, Mar. 10, 1978, 92 Stat. 120, which is classified principally to chapter 47 (§ 3201 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 3201 of this title and Tables. The Arms Export Control Act, referred to in text, is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, which is clas- sified principally to this chapter (§ 2751 et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables. The Export Administration Act of 1979, referred to in text, is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, which was classified principally to chapter 56 (§ 4601 et seq.) of Title 50, War and National Defense, prior to repeal by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232, except for sections 11A, 11B, and 11C thereof (50 U.S.C. 4611, 4612, 4613). CODIFICATION Section was enacted as part of the International Se- curity and Development Cooperation Act of 1980, and not as part of the Arms Export Control Act which com- prises this chapter. § 2779. Fees of military sales agents (a) Adequate and timely reports to Secretary of State; maintenance of records In accordance with such regulations as he may prescribe, the Secretary of State shall require adequate and timely reporting on political con- tributions, 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 serv- ices under section 2762 of this title, or of de- sign and construction services under section 2769 of this title; (2) commercial sales of defense articles or defense services licensed or approved under section 2778 of this title; or (3) exports of defense articles or defense services pursuant to a treaty referenced in section 2778(j)(1)(C)(i) of this title; to or for the armed forces of a foreign country or international organization in order to solicit, promote, or otherwise to secure the conclusion of such sales. Such regulations shall specify the amounts and the kinds of payments, offers, and agreements to be reported, and the form and timing of reports, and shall require reports on the names of sales agents and other persons re- ceiving such payments. The Secretary of State shall by regulation require such recordkeeping as he determines is necessary. (b) Presidential regulation The President may, by regulation, prohibit, limit, or prescribe conditions with respect to such contributions, gifts, commissions, and fees as he determines will be in furtherance of the purposes of this chapter. (c) Allocation to contract; improper influence No such contribution, gift, commission, or fee may be included, in whole or in part, in the amount paid under any procurement contract entered into under section 2762 or section 2769 of this title, unless the amount thereof is reason- able, allocable to such contract, and not made to a person who has solicited, promoted, or oth- erwise secured such sale, or has held himself out as being able to do so, through improper influ- ence. For the purposes of this section, ‘‘im- proper influence’’ means influence, direct or in- direct, which induces or attempts to induce con- sideration or action by any employee or officer of a purchasing foreign government or inter- national organization with respect to such pur- chase on any basis other than such consider- ation of merit as are involved in comparable United States procurements. (d) Availability of records to Congress and Fed- eral agencies (1) All information reported to the Secretary of State and all records maintained by any per- son 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 per- son 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 condi- tions 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.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables. AMENDMENTS 2010—Subsec. (a)(3). Pub. L. 111–266, which directed amendment of subsec. (a) by adding par. (3) at the end, was executed by adding par. (3) after par. (2) to reflect the probable intent of Congress. 1980—Subsec. (a)(1). Pub. L. 96–533, § 105(e)(2)(A), in- serted reference to sales of design and construction services under section 2769 of this title. Subsec. (c). Pub. L. 96–533, § 105(e)(2)(B), inserted ref- erence to section 2769 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 60 days after June 30, 1976, see sec- tion 604(c) of Pub. L. 94–329, set out as note under sec- tion 2776 of this title. Page 1264 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2779a 1 See References in Text note below. Executive Documents DELEGATION OF FUNCTIONS For delegation of functions of the President under subsec. (b) of this section, with certain conditions, see section 1(o) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16130, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under sec- tion 2751 of this title and was revoked, subject to a sav- ings provision, by section 4 of Ex. Ord. No. 13637. § 2779a. Prohibition on incentive payments (a) In general No United States supplier of defense articles or services sold or licensed under this chapter or exported pursuant to a treaty referred to in sec- tion 2778(j)(1)(C)(i) of this title, nor any em- ployee, agent, or subcontractor thereof, shall, with respect to the sale or export of any such de- fense article or defense service to a foreign country, make any incentive payments for the purpose of satisfying, in whole or in part, any offset agreement with that country. (b) Civil penalties Any person who violates the provisions of this section shall be subject to the imposition of civil penalties as provided for in this section. (c) Presidential authority In the enforcement of this section, the Presi- dent is authorized to exercise the same powers concerning violations and enforcement and im- position of civil penalties which are conferred upon departments, agencies and officials by sub- sections (c), (d), (e), and (f) of section 11 1 of the Export Administration Act of 1979, and section 12(a) 1 of such Act, subject to the same terms and conditions as are applicable to such powers under that Act, except that section 11(c)(2)(B) of such Act shall not apply, and instead, as pre- scribed in regulations issued under this section, the Secretary of State may assess civil penalties for violations of this chapter and regulations prescribed thereunder and further may com- mence a civil action to recover such civil pen- alties, and except further that notwithstanding section 11(c) of that Act, the civil penalty for each violation of this section may not exceed $500,000 or five times the amount of the prohib- ited incentive payment, whichever is greater. (d) Definitions For purposes of this section— (1) the term ‘‘offset agreement’’ means an agreement, arrangement, or understanding be- tween a United States supplier of defense arti- cles or defense services and a foreign country under which the supplier agrees to purchase or acquire, or to promote the purchase or acqui- sition 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 de- fense services from the supplier; (2) the term ‘‘incentive payments’’ means di- rect monetary compensation made by a United States supplier of defense articles or defense services or by any employee, agent or subcon- tractor thereof to any other United States per- son to induce or persuade that United States person to purchase or acquire goods or serv- ices produced, manufactured, grown, or ex- tracted, in whole or in part, in the foreign country which is purchasing those defense ar- ticles or services from the United States sup- plier; and (3) the term ‘‘United States person’’ means— (A) an individual who is a national or per- manent resident alien of the United States; and (B) any corporation, business association, partnership, trust, or other juridical enti- ty— (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 indi- viduals 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.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (c), was in the original ‘‘this Act’’, meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables. The Export Administration Act of 1979, referred to in subsec. (c), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, which was classified principally to chapter 56 (§ 4601 et seq.) of Title 50, War and National Defense, prior to re- peal by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232, except for sections 11A, 11B, and 11C thereof (50 U.S.C. 4611, 4612, 4613). Sections 11 and 12 of the Act were classified to sections 4610 and 4614, re- spectively, of Title 50 prior to repeal. AMENDMENTS 2010—Subsec. (a). Pub. L. 111–266 inserted ‘‘or ex- ported pursuant to a treaty referred to in section 2778(j)(1)(C)(i) of this title’’ after ‘‘under this chapter’’. 1999—Subsec. (a). Pub. L. 106–113, § 1000(a)(7) [title XII, § 1246(a)], inserted ‘‘or licensed’’ after ‘‘sold’’ and ‘‘or export’’ after ‘‘sale’’. Subsec. (c). Pub. L. 106–113, § 1000(a)(7) [title XIII, § 1303], inserted ‘‘section 11(c)(2)(B) of such Act shall not apply, and instead, as prescribed in regulations issued under this section, the Secretary of State may assess civil penalties for violations of this chapter and regulations prescribed thereunder and further may commence a civil action to recover such civil penalties, and except further that’’ after ‘‘except that’’. Subsec. (d)(3)(B)(ii). Pub. L. 106–113, § 1000(a)(7) [title XII, § 1246(b)], inserted ‘‘or by an entity described in clause (i)’’ after ‘‘subparagraph (A)’’. Executive Documents DELEGATION OF FUNCTIONS Functions of President under this section delegated to Secretary of State by Memorandum of President of