22 U.S.C. § 2785 — End-use monitoring of defense articles

Page 1268 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2781 Oct. 12, 1984, 98 Stat. 1904, 1936, 1937, which is not classi- fied to the Code. The National Security Act of 1947, referred to in sub- sec. (h), is act July 26, 1947, ch. 343, 61 Stat. 495, which was formerly classified principally to chapter 15 (§ 401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§ 3001 et seq.) of Title 50. Title V of the Act is now classified generally to subchapter III (§ 3091 et seq.) of chapter 44 of Title 50. For complete classification of this Act to the Code, see Tables. The Export Administration Act of 1979, referred to in subsec. (k), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, which 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 2014—Subsecs. (f)(1), (g)(2)(B). Pub. L. 113–276 sub- stituted ‘‘the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Rep- resentatives, and’’ for ‘‘the Speaker of the House of Representatives and’’ in introductory provisions. 2010—Subsec. (j). Pub. L. 111–195 substituted ‘‘20 years’’ for ‘‘10 years’’. 2002—Subsec. (d). Pub. L. 107–228 substituted ‘‘groups,’’ for ‘‘groups or’’ in second sentence and in- serted before period at end ‘‘, or willfully aid or abet the efforts of an individual or group to use, develop, produce, stockpile, or otherwise acquire chemical, bio- logical, or radiological weapons’’. 1999—Subsec. (k). Pub. L. 106–113 inserted ‘‘section 11(c)(2)(B) of such Act shall not apply, and instead, as prescribed in regulations issued under this section, the Secretary of State may assess civil penalties for viola- tions of this chapter and regulations prescribed there- under and further may commence a civil action to re- cover such civil penalties, and except further that’’ after ‘‘except that’’. 1994—Subsec. (d). Pub. L. 103–236, § 822(a)(2)(A), in- serted at end ‘‘For purposes of this subsection, such acts shall include all activities that the Secretary de- termines willfully aid or abet the international pro- liferation of nuclear explosive devices to individuals or groups or willfully aid or abet an individual or groups in acquiring unsafeguarded special nuclear material.’’ Subsec. (l). Pub. L. 103–236, § 822(a)(2)(B), amended subsec. (l) by striking ‘‘and’’ after the semicolon in par. (2), substituting a semicolon for the period at the end of par. (3), and adding pars. (4) and (5). 1991—Subsec. (f). Pub. L. 102–138, § 321, designated ex- isting provisions as par. (1), redesignated former par. (1) as subpar. (A) and former subpars. (A) to (C) as cls. (i) to (iii), respectively, redesignated former par. (2) as subpar. (B) and former subpars. (A) and (B) as cls. (i) and (ii), respectively, and added par. (2). So much of Pub. L. 102–138, § 321(1), as directed that subpar. (C) of former par. (2) be redesignated cl. (iii) of par. (1)(B), could not be executed because no such subpar. (C) had been enacted. 1989—Pub. L. 101–222 substituted ‘‘Transactions with’’ for ‘‘Exports to’’ in section catchline and amended text generally. Prior to amendment, text read as follows: ‘‘(a) PROHIBITION.—Except as provided in subsection (b) of this section, items on the United States Muni- tions List may not be exported to any country which the Secretary of State has determined, for purposes of section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)), has repeatedly pro- vided support for acts of international terrorism. ‘‘(b) WAIVER.—The President may waive the prohibi- tion contained in subsection (a) of this section in the case of a particular export if the President determines that the export is important to the national interests of the United States and submits to the Congress a re- port justifying that determination and describing the proposed export. Any such waiver shall expire at the end of 90 days after it is granted unless the Congress enacts a law extending the waiver.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–236 effective 60 days after Apr. 30, 1994, see section 831 of Pub. L. 103–236, set out as an Effective Date note under section 6301 of this title. § 2781. Transactions with countries not fully co- operating with United States antiterrorism efforts (a) Prohibited transactions No defense article or defense service may be sold or licensed for export under this chapter in a fiscal year to a foreign country that the Presi- dent determines and certifies to Congress, by May 15 of the calendar year in which that fiscal year begins, is not cooperating fully with United States antiterrorism efforts. (b) Waiver The President may waive the prohibition set forth in subsection (a) with respect to a specific transaction if the President determines that the transaction is important to the national inter- ests of the United States. (Pub. L. 90–629, ch. 3, § 40A, as added Pub. L. 104–132, title III, § 330, Apr. 24, 1996, 110 Stat. 1258.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a), was in the original ‘‘this Act’’, meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables. CODIFICATION Another section 40A of Pub. L. 90–629 is classified to section 2785 of this title. Executive Documents DELEGATION OF FUNCTIONS For delegation of functions of the President under this section, see section 1(q) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16130, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637. SUBCHAPTER III–A—END-USE MONITORING OF DEFENSE ARTICLES AND DEFENSE SERVICES § 2785. End-use monitoring of defense articles and defense services (a) Establishment of monitoring program (1) In general In order to improve accountability with re- spect to defense articles and defense services sold, leased, or exported under this chapter or the Foreign Assistance Act of 1961 (22 U.S.C. Page 1269 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2791 2151 et seq.), the President shall establish a program which provides for the end-use moni- toring of such articles and services. (2) Requirements of program To the extent practicable, such program— (A) shall provide for the end-use moni- toring of defense articles and defense serv- ices in accordance with the standards that apply for identifying high-risk exports for regular end-use verification developed under section 2778(g)(7) of this title (commonly re- ferred to as the ‘‘Blue Lantern’’ program); and (B) shall be designed to provide reasonable assurance that— (i) the recipient is complying with the requirements imposed by the United States Government with respect to use, transfers, and security of defense articles and defense services; and (ii) such articles and services are being used for the purposes for which they are provided. (b) Conduct of program In carrying out the program established under subsection (a), the President shall ensure that the program— (1) provides for the end-use verification of defense articles and defense services that in- corporate sensitive technology, defense arti- cles and defense services that are particularly vulnerable to diversion or other misuse, or de- fense articles or defense services whose diver- sion or other misuse could have significant consequences; and (2) prevents the diversion (through reverse engineering or other means) of technology in- corporated in defense articles. (c) Report to Congress Not later than 6 months after July 21, 1996, and annually thereafter as a part of the annual congressional presentation documents sub- mitted under section 634 of the Foreign Assist- ance Act of 1961 [22 U.S.C. 2394], the President shall transmit to the Congress a report describ- ing the actions taken to implement this section, including a detailed accounting of the costs and number of personnel associated with the moni- toring program and the numbers, range, and findings of end-use monitoring of United States transfers of small arms and light weapons. (d) Third country transfers For purposes of this section, defense articles and defense services sold, leased, or exported under this chapter or the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) includes de- fense articles and defense services that are transferred to a third country or other third party. (Pub. L. 90–629, ch. 3A, § 40A, as added Pub. L. 104–164, title I, § 150(a), July 21, 1996, 110 Stat. 1436; amended Pub. L. 107–228, div. B, title XII, § 1205(b), Sept. 30, 2002, 116 Stat. 1428.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(1) and (d), was in the original ‘‘this Act’’, meaning Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1321, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables. The Foreign Assistance Act of 1961, referred to in sub- secs. (a)(1) and (d), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, which is classified principally to chapter 32 (§ 2151 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2151 of this title and Tables. CODIFICATION Another section 40A of Pub. L. 90–629 is classified to section 2781 of this title. AMENDMENTS 2002—Subsec. (c). Pub. L. 107–228 inserted ‘‘and the numbers, range, and findings of end-use monitoring of United States transfers of small arms and light weap- ons’’ before period at end. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 104–164, title I, § 150(b), July 21, 1996, 110 Stat. 1437, provided that: ‘‘Section 40A of the Arms Export Control Act, as added by subsection (a) [22 U.S.C. 2785], applies with respect to defense articles and defense services provided before or after the date of the enact- ment of this Act [July 21, 1996].’’ Executive Documents DELEGATION OF FUNCTIONS For delegation of functions of the President under this section, with certain conditions, see section 1(p) of Ex. Ord. No. 13637, Mar. 8, 2013, 78 F.R. 16130, set out as a note under section 2751 of this title. Functions were previously delegated by Ex. Ord. No. 11958, which was formerly set out as a note under section 2751 of this title and was revoked, subject to a savings provision, by section 4 of Ex. Ord. No. 13637. SUBCHAPTER IV—GENERAL, ADMINISTRA- TIVE, 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 sub- section (b) of this section, consideration shall also be given to coproduction or licensed produc- tion outside the United States of defense arti- cles of United States origin when such produc- tion best serves the foreign policy, national se- curity, and economy of the United States. In evaluating any sale proposed to be made pursu- ant to this chapter, there shall be taken into consideration (A) the extent to which the pro- posed 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 coun- try to entities located in friendly foreign coun- tries, which licenses result in financial returns to the United States, (B) the portion of the de- fense 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 ter- rorism, increase the possibility of outbreak or