10 U.S.C. § 2343 — Waiver of applicability of certain laws

Page 1880 TITLE 10—ARMED FORCES § 2343 par. (1) of subsec. (a), adding pars. (2) and (3) of subsec. (a), and adding subsecs. (b) to (d). 1985—Pub. L. 99–145 renumbered section 2322 of this title as this section and substituted ‘‘section 2343’’ for ‘‘section 2323’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on International Relations of House of Representatives changed to Committee on Foreign Af- fairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–337 applicable with regard to any acquisition or transfer of logistic support, sup- plies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as a note under section 2341 of this title. CROSS SERVICING AGREEMENTS FOR LOAN OF PER- SONNEL PROTECTION AND PERSONNEL SURVIVABILITY EQUIPMENT IN COALITION OPERATIONS Pub. L. 113–291, div. A, title XII, § 1207, Dec. 19, 2014, 128 Stat. 3539, as amended by Pub. L. 115–91, div. A, title X, § 1051(t)(4), Dec. 12, 2017, 131 Stat. 1566; Pub. L. 116–92, div. A, title XII, § 1202, Dec. 20, 2019, 133 Stat. 1620; Pub. L. 118–31, div. A, title XII, § 1206, Dec. 22, 2023, 137 Stat. 448, provided that: ‘‘(a) IN GENERAL.—The Secretary of Defense may, with the concurrence of the Secretary of State, enter into an arrangement, under an agreement concluded pursuant to section 2342 of title 10, United States Code, under which the United States agrees to loan personnel protection and personnel survivability equipment for the use of such equipment by military forces of a na- tion participating in the following: ‘‘(1) A coalition operation with the United States as part of a contingency operation. ‘‘(2) A coalition operation with the United States as part of a peacekeeping operation under the Charter of the United Nations or another international agree- ment. ‘‘(3) Training of such forces in connection with the deployment of such forces to be deployed to an oper- ation described in paragraph (1) or (2). ‘‘(b) LIMITATIONS.— ‘‘(1) LOAN ONLY OF EQUIPMENT FOR WHICH U.S. FORCES HAVE NO UNFULFILLED REQUIREMENTS.—Equipment may be loaned to the military forces of a nation under the authority of this section only upon a deter- mination by the Secretary of Defense that the United States forces in the coalition operation concerned have no unfulfilled requirements for such equipment. ‘‘(2) SCOPE OF USE OF LOANED EQUIPMENT.—Equip- ment loaned to the military forces of a nation under the authority of this section may be used by those forces only for personnel protection or to aid in the personnel survivability of those forces and only in— ‘‘(A) a coalition operation with the United States described in paragraph (1) or (2) of subsection (a); or ‘‘(B) training described in paragraph (3) of sub- section (a). ‘‘(3) DURATION OF USE OF LOANED EQUIPMENT.— Equipment loaned to the military forces of a nation under the authority of this section may be used by the military forces of that nation not longer than the duration of that country’s participation in the coali- tion operation concerned. ‘‘(4) NOTICE AND WAIT ON LOAN OF EQUIPMENT FOR TRAINING.—Equipment may not be loaned under sub- section (a) in connection with training described in paragraph (3) of that subsection until 15 days after the date on which the Secretary of Defense submits to the appropriate committees of Congress written notice on the loan of such equipment for such pur- pose. ‘‘(c) WAIVER OF REIMBURSEMENT IN CASE OF LOSS OF EQUIPMENT IN COMBAT.— ‘‘(1) IN GENERAL.—In the case of equipment loaned under the authority of this section that is damaged or destroyed as a result of combat operations during coalition operations while held by forces to which loaned under this section, the Secretary of Defense may, with respect to such equipment, waive any other requirement under applicable law for— ‘‘(A) reimbursement; ‘‘(B) replacement-in-kind; or ‘‘(C) exchange of supplies or services of an equal value. ‘‘(2) BASIS FOR WAIVER.—Any waiver under this sub- section may be made only if the Secretary deter- mines that the waiver is in the national security in- terest of the United States. ‘‘(3) WAIVER ON A CASE-BY-CASE BASIS.—Any waiver under this subsection may be made only on a case-by- case basis. ‘‘(d) REPORTS TO CONGRESS.—If the authority pro- vided under this section is exercised during a fiscal year, the Secretary of Defense shall, with the concur- rence of the Secretary of State, submit to the appro- priate committees of Congress a report on the exercise of such authority by not later than October 30 of the year in which such fiscal year ends. Each report on the exercise of such authority shall specify the recipient country of the equipment loaned, the type of equip- ment loaned, and the duration of the loan of such equipment. ‘‘(e) DEFINITIONS.—In this section: ‘‘(1) The term ‘appropriate committees of Congress’ means— ‘‘(A) the Committee on Armed Services and the Committee on Foreign Relations of the Senate; and ‘‘(B) the Committee on Armed Services and the Committee on Foreign Affairs of the House of Rep- resentatives. ‘‘(2) The term ‘personnel protection and personnel survivability equipment’ means items enumerated in categories I, II, III, VII, X, XI, and XIII of the United States Munitions List under section 38(a)(1) of the Arms Export Control Act (22 U.S.C. 2778(a)(1)[)] that the Secretary of Defense designates as available for loan under this section. ‘‘(f) EXPIRATION OF AUTHORITY.—The authority in sub- section (a) shall expire on December 31, 2029.’’ § 2343. Waiver of applicability of certain laws Sections 4651, 3201, 3351, 3352(a), 3352(c), 3701 through 3708, and 3841 of this title and section 6306 of title 41 shall not apply to acquisitions made under the authority of section 2341 of this title or to agreements entered into under sec- tion 2342 of this title. (Added Pub. L. 96–323, § 2(a), Aug. 4, 1980, 94 Stat. 1017, § 2323; renumbered § 2343 and amended Pub. L. 99–145, title IX, § 961(b), title XIII, § 1304(a)(1), (5), Nov. 8, 1985, 99 Stat. 703, 741; Pub. L. 100–26, § 7(g)(2), Apr. 21, 1987, 101 Stat. 282; Pub. L. 100–456, div. A, title XII, § 1233(d), Sept. 29, 1988, 102 Stat. 2057; Pub. L. 101–189, div. A, title IX, § 931(e)(1), Nov. 29, 1989, 103 Stat. 1535; Pub. L. 102–190, div. A, title X, § 1061(a)(12), Dec. 5, 1991, 105 Stat. 1473; Pub. L. 103–337, div. A, title XIII, § 1317(c)(1), (2)(A), Oct. 5, 1994, 108 Stat. 2900; Pub. L. 111–350, § 5(b)(20), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 116–283, div. A, title XVIII, §§ 1817(h), 1831(j)(3), 1862(c)(1), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4188, 4216, 4278, 4294; Pub. L. 117–81, div. A, title XVII, § 1701(b)(10)(I)(i), Dec. 27, 2021, 135 Stat. 2134.) Page 1881 TITLE 10—ARMED FORCES § 2344 Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1883(b)(2), substituted ‘‘3201’’ for ‘‘2304(a)’’. Pub. L. 116–283, § 1862(c)(1), substituted ‘‘Sections 4651,’’ for ‘‘Sections 2207,’’. Pub. L. 116–283, § 1831(j)(3), as amended by Pub. L. 117–81, § 1701(b)(10)(I)(i), substituted ‘‘3701 through 3708, and 3841’’ for ‘‘2306a, and 2313’’. Pub. L. 116–283, § 1817(h), substituted ‘‘3351, 3352(a), 3352(c)’’ for ‘‘2306(a), 2306(b), 2306(e)’’. 2011—Pub. L. 111–350 substituted ‘‘section 6306 of title 41’’ for ‘‘section 3741 of the Revised Statutes (41 U.S.C. 22)’’. 1994—Pub. L. 103–337, § 1317(c)(2)(A), substituted ‘‘Waiver of applicability of certain laws’’ for ‘‘Law ap- plicable to acquisition and cross-servicing agreements’’ as section catchline. Pub. L. 103–337, § 1317(c)(1), designated subsec. (b) as entire section and struck out former subsec. (a) which read as follows: ‘‘Except as provided in subsection (b), acquisition of logistic support, supplies, and services under section 2341 of this title and agreements entered into under section 2342 of this title shall be made in ac- cordance with chapter 137 of this title and the provi- sions of this subchapter.’’ 1991—Subsec. (b). Pub. L. 102–190 substituted ‘‘this title and’’ for ‘‘this title,’’ and struck out ‘‘, and sec- tion 719 of the Defense Production Act of 1950 (50 U.S.C. App. 2168)’’ before ‘‘shall not apply’’. 1989—Subsec. (a). Pub. L. 101–189 substituted ‘‘this subchapter’’ for ‘‘this chapter’’. 1988—Subsec. (b). Pub. L. 100–456 struck out ‘‘section’’ before ‘‘2306a’’. 1987—Subsec. (b). Pub. L. 100–26 substituted ‘‘section 2306a,’’ for ‘‘2306(f),’’. 1985—Pub. L. 99–145, § 1304(a)(1), renumbered section 2323 of this title as this section. Subsec. (a). Pub. L. 99–145, § 1304(a)(5), substituted ‘‘section 2341’’ for ‘‘section 2321’’ and ‘‘section 2342’’ for ‘‘section 2322’’. Subsec. (b). Pub. L. 99–145, § 1304(a)(5), substituted ‘‘section 2341’’ for ‘‘section 2321’’ and ‘‘section 2342’’ for ‘‘section 2322’’. Pub. L. 99–145, § 961(b), substituted ‘‘section 2304(a)’’ for ‘‘section 2304(g)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below. Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–337 applicable with regard to any acquisition or transfer of logistic support, sup- plies, and services under authority of this subchapter that is initiated after Oct. 5, 1994, see section 1317(j) of Pub. L. 103–337, set out as a note under section 2341 of this title. EFFECTIVE DATE OF 1985 AMENDMENT Pub. L. 99–145, title IX, § 961(e), Nov. 8, 1985, 99 Stat. 704, provided that: ‘‘The amendments made by sub- sections (a) [amending section 2304 of this title and sec- tion 253 of Title 41, Public Contracts], (b) [amending this section], and (c) [amending section 759 of former Title 40, Public Buildings, Property, and Works] shall take effect as if included in the enactment of the Com- petition in Contracting Act of 1984 (title VII of division B of Public Law 98–369) [see Effective Date of 1984 Amendment note set out under section 4751 of this title].’’ § 2344. Methods of payment for acquisitions and transfers by the United States (a) Logistics support, supplies, and services may be acquired or transferred by the United States under the authority of this subchapter on a reimbursement basis or by replacement-in- kind or exchange of supplies or services of an equal value. (b)(1) In entering into agreements with the Government of another North Atlantic Treaty Organization country or other foreign country for the acquisition or transfer of logistic sup- port, supplies, and services on a reimbursement basis, the Secretary of Defense shall negotiate for adoption of the following pricing principles for reciprocal application: (A) The price charged by a supplying coun- try for logistics support, supplies, and services specifically procured by the supplying country from its contractors for a recipient country shall be no less favorable than the price for identical items or services charged by such contractors to the armed forces of the sup- plying country, taking into account price dif- ferentials due to delivery schedules, points of delivery, and other similar considerations. (B) The price charged a recipient country for supplies furnished by a supplying country from its inventory, and the price charged a re- cipient country for logistics support and serv- ices furnished by the officers, employees, or governmental agencies of a supplying country, shall be the same as the price charged for identical supplies, support, or services ac- quired by an armed force of the supplying country from such governmental sources. (2) To the extent that the Secretary of Defense is unable to obtain mutual acceptance by the other country involved of the reciprocal pricing principles for reimbursable transactions set forth in paragraph (1)— (A) the United States may not acquire from such country any logistic support, supply, or service not governed by such reciprocal pric- ing principles unless the United States forces commander acquiring such support, supply, or service determines (after price analysis) that the price thereof is fair and reasonable; and (B) transfers by the United States to such country under this subchapter of any logistic support, supply, or service that is not gov- erned by such reciprocal pricing principles shall be subject to the pricing provisions of the Arms Export Control Act (22 U.S.C. 2751 et seq.). (3) To the extent that indirect costs (including charges for plant and production equipment), administrative surcharges, and contract admin- istration costs with respect to any North Atlan- tic Treaty Organization country or other foreign country are not waived by operation of the re- ciprocal pricing principles of paragraph (1), the Secretary of Defense may, on a reciprocal basis, agree to waive such costs. (4) The pricing principles set forth in para- graph (2) and the waiver authority provided in