22 U.S.C. § 2357 — Furnishing of services and commodities

Page 835 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2357 the exclusive remedy of the owner, except as provided in subsection (b) of this section, is to sue the United States Government for reason- able and entire compensation for such practice or disclosure in the district court of the United States for the district in which such owner is a resident, or in the United States Court of Fed- eral Claims, within six years after the cause of action arises. Any period during which the United States Government is in possession of a written claim under subsection (b) of this sec- tion before mailing a notice of denial of that claim does not count in computing the six years. In any such suit, the United States Government may plead any defense that may be pleaded by a private person in such an action. The last para- graph of section 1498(a) of title 28 shall apply to inventions and information covered by this sec- tion. (b) Settlement of claims Before suit against the United States Govern- ment has been instituted, the head of the agency of the United States Government concerned may settle and pay any claim arising under the cir- cumstances described in subsection (a) of this section. No claim may be paid under this sub- section unless the amount tendered is accepted by the claimant in full satisfaction. (c) Drug products manufactured outside the United States Funds appropriated pursuant to this chapter shall not be expended by the United States Gov- ernment for the acquisition of any drug product or pharmaceutical product manufactured out- side the United States if the manufacture of such drug product or pharmaceutical product in the United States would involve the use of, or be covered by, an unexpired patent of the United States which has not previously been held in- valid by an unappealed or unappealable judg- ment or decree of a court of competent jurisdic- tion, unless such manufacture is expressly au- thorized by the owner of such patent. (Pub. L. 87–195, pt. III, § 606, Sept. 4, 1961, 75 Stat. 440; Pub. L. 97–164, title I, § 160(a)(6), Apr. 2, 1982, 96 Stat. 48; Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (c), was in the original ‘‘this Act’’, meaning Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, known as the Foreign Assist- ance Act of 1961. For complete classification of this Act to the Code, see Short Title note set out under section 2151 of this title and Tables. AMENDMENTS 1992—Subsec. (a). Pub. L. 102–572 substituted ‘‘United States Court of Federal Claims’’ for ‘‘United States Claims Court’’. 1982—Subsec. (a). Pub. L. 97–164 substituted ‘‘United States Claims Court’’ for ‘‘Court of Claims’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of Title 28, Judiciary and Judicial Procedure. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of Title 28, Judiciary and Judicial Proce- dure. § 2357. Furnishing of services and commodities (a) Advance-of-funds or reimbursement basis Whenever the President determines it to be consistent with and in furtherance of the pur- poses of subchapter I of this chapter and within the limitations of this chapter, any agency of the United States Government is authorized to furnish services and commodities on an advance- of-funds or reimbursement basis to friendly countries, international organizations, the American Red Cross, and voluntary nonprofit re- lief agencies registered with and approved by the Agency for International Development (in- cluding foreign voluntary nonprofit relief agen- cies so registered and approved when no United States voluntary nonprofit relief agency is available). Such advances or reimbursements may be credited to the currently applicable ap- propriation, account, or fund of the agency con- cerned and shall be available for the purposes for which such appropriation, account, or fund is authorized to be used, under the following cir- cumstances: (1) Advances or reimbursements which are received under this section within one hundred and eighty days after the close of the fiscal year in which such services and commodities are delivered. (2) Advances or reimbursements received pursuant to agreements executed under this section in which reimbursement will not be completed within one hundred and eighty days after the close of the fiscal year in which such services and commodities are delivered: Pro- vided, That such agreements require the pay- ment of interest at the current rate estab- lished pursuant to section 635(b)(1)(B) of title 12, and repayment of such principal and inter- est does not exceed a period of three years from the date of signing of the agreement to provide the service: Provided further, That funds available for this paragraph in any fiscal year shall not exceed $1,000,000 of the total funds authorized for use in such fiscal year by part I of subchapter I of this chapter, and shall be available only to the extent provided in ap- propriation Acts. Interest shall accrue as of the date of disbursement to the agency or or- ganization providing such services. (b) Agency contracts with individuals to perform services When any agency of the United States Govern- ment provides services on an advance-of-funds or reimbursable basis under this section, such agency may contract with individuals for per- sonal service abroad or in the United States to perform such services or to replace officers or employees of the United States Government who are assigned by the agency to provide such serv- ices. Such individuals shall not be regarded as employees of the United States Government for the purpose of any law administered by the Di- rector of the Office of Personnel Management. Page 836 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2357 (c) Excess property (1) Except as provided in subsection (d), no Government-owned excess property shall be made available under this section, section 2358 of this title, or otherwise in furtherance of the purposes of subchapter I of this chapter, unless, before the shipment of such property for use in a specified country (or transfer, if the property is already in such country), the agency admin- istering such subchapter I has approved such shipment (or transfer) and made a written deter- mination— (A) that there is a need for such property in the quantity requested and that such property is suitable for the purpose requested; (B) as to the status and responsibility of the designated end-user and his ability effectively to use and maintain such property; and (C) that the residual value, serviceability, and appearance of such property would not re- flect unfavorably on the image of the United States and would justify the costs of packing, crating, handling, transportation, and other accessorial costs, and that the residual value at least equals the total of these costs. (2) For purposes of transferring property de- scribed in this subsection in furtherance of the provisions of part VIII of subchapter I of this chapter, the phrase ‘‘the agency administering such subchapter I’’ shall be considered to refer to the Department of State. (d) Transfer of Government-owned excess prop- erty to enhance environmental protection in foreign countries The Secretary of State, acting through the As- sistant Secretary of State for Oceans and Inter- national Environmental and Scientific Affairs, is authorized to transfer to any friendly coun- try, international organization, the American Red Cross, or other voluntary nonprofit relief agency described in subsection (a), Government- owned excess property made available under this section or section 2358 of this title in order to support activities carried out under subchapter I of this chapter which are designed to enhance environmental protection in foreign countries if the Secretary of State makes a written deter- mination— (1) that there is a need for such property in the quantity requested and that such property is suitable for the purpose requested; (2) as to the status and responsibility of the designated end-user and his ability effectively to use and maintain such property; and (3) that the residual value, serviceability, and appearance of such property would not re- flect unfavorably on the image of the United States and would justify the costs of packing, crating, handling, transportation, and other accessorial costs, and that the residual value at least equals the total of these costs. (Pub. L. 87–195, pt. III, § 607, Sept. 4, 1961, 75 Stat. 441; Pub. L. 90–554, pt. III, § 301(b), Oct. 8, 1968, 82 Stat. 963; Pub. L. 94–161, title III, § 315, Dec. 20, 1975, 89 Stat. 867; Pub. L. 95–88, title I, § 122(a), Aug. 3, 1977, 91 Stat. 541; Pub. L. 95–424, title V, § 503, Oct. 6, 1978, 92 Stat. 959; 1978 Reorg. Plan No. 2, § 102, eff. Jan. 1, 1979, 43 F.R. 36037, 92 Stat. 3783; Pub. L. 96–53, title I, § 121, Aug. 14, 1979, 93 Stat. 366; Pub. L. 99–93, title I, § 129, Aug. 16, 1985, 99 Stat. 419.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a), was in the original ‘‘this Act’’, meaning Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, known as the Foreign Assistance Act of 1961. For complete classification of this Act to the Code, see Short Title note set out under section 2151 of this title and Tables. AMENDMENTS 1985—Subsec. (c)(1). Pub. L. 99–93, § 129(1)(A), (B), des- ignated existing provisions of subsec. (c) as par. (1), re- designated existing pars. (1), (2), and (3) as subpars. (A), (B), and (C), respectively, and in introductory provi- sions of par. (1) as so designated substituted ‘‘Except as provided in subsection (d), no’’ for ‘‘No’’. Subsec. (c)(2). Pub. L. 99–93, § 129(1)(C), added par. (2). Subsec. (d). Pub. L. 99–93, § 129(2), added subsec. (d). 1979—Subsec. (a). Pub. L. 96–53 substituted ‘‘Agency for International Development’’ for ‘‘Advisory Com- mittee on Voluntary Foreign Aid’’. 1978—Subsecs. (b), (c). Pub. L. 95–424 added subsec. (b) and redesignated former subsec. (b) as (c). 1977—Subsec. (a). Pub. L. 95–88 inserted ‘‘(including foreign voluntary nonprofit relief agencies so reg- istered and approved when no United States voluntary nonprofit relief agency is available)’’ after ‘‘and vol- untary nonprofit relief agencies registered with and ap- proved by the Advisory Committee on Voluntary For- eign Aid’’ in provisions preceding par. (1). 1975—Subsec. (a). Pub. L. 94–161 substituted ‘‘cur- rently’’ for ‘‘current’’, incorporated text following ‘‘Such advances or reimbursements’’ in provisions des- ignated cl. (1) and added cl. (2). 1968—Pub. L. 90–554 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries REFERENCES TO SUBCHAPTER I DEEMED TO INCLUDE CERTAIN PARTS OF SUBCHAPTER II References to subchapter I of this chapter are deemed to include parts IV (§ 2346 et seq.), VI (§ 2348 et seq.), and VIII (§ 2349aa et seq.) of subchapter II of this chapter, and references to subchapter II are deemed to exclude such parts. See section 202(b) of Pub. L. 92–226, set out as a note under section 2346 of this title, and sections 2348c and 2349aa–5 of this title. REFERENCES TO PART I DEEMED TO INCLUDE SECTION 2293 References to part I of subchapter I of this chapter are deemed to include a reference to section 2293 of this title. See section 2293(d)(1) of this title. EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–53 effective Oct. 1, 1979, see section 512(a) of Pub. L. 96–53, set out as a note under section 2151 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–424 effective Oct. 1, 1978, see section 605 of Pub. L. 95–424, set out as a note under section 2151 of this title. REGULATIONS Pub. L. 95–88, title I, § 122(b), Aug. 3, 1977, 91 Stat. 541, provided that: ‘‘For purposes of implementing the amendment made by subsection (a) [amending this sec- tion], the President shall issue regulations governing registration with and approval by the Advisory Com- mittee on Voluntary Foreign Aid of foreign voluntary nonprofit agencies.’’ Page 837 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2358 AUTHORITY OF SECRETARY OF STATE Except as otherwise provided, Secretary of State to have and exercise any authority vested by law in any official or office of Department of State and references to such officials or offices deemed to refer to Secretary of State or Department of State, as appropriate, see section 2651a of this title and section 161(d) of Pub. L. 103–236, set out as a note under section 2651a of this title. TERMINATION OF ADVISORY COMMITTEES Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2- year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See section 1013 of Title 5, Government Organiza- tion and Employees. Executive Documents TRANSFER OF FUNCTIONS ‘‘Director of the Office of Personnel Management’’ substituted for ‘‘Civil Service Commission’’ in subsec. (b) pursuant to Reorg. Plan No. 2 of 1978, § 102, 43 F.R. 36037, 92 Stat. 3783, set out under section 1101 of Title 5, Government Organization and Employees, which transferred all functions vested by statute in the United States Civil Service Commission to the Director of the Office of Personnel Management (except as oth- erwise specified), effective Jan. 1, 1979, as provided by section 1–102 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out under section 1101 of Title 5. 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. DELEGATION OF AUTHORITY Memorandum of President of the United States, Feb. 16, 1995, 60 F.R. 10793, provided: Memorandum for the Secretary of State [and] the Ad- ministrator of the Agency for International Develop- ment By virtue of the authority vested in me by the Con- stitution and laws of the United States of America, in- cluding section 301 of title 3 of the United States Code, I hereby delegate as follows certain authorities vested in the President: (A) the functions under section 607 of the Foreign As- sistance Act of 1961, as amended (FAA) [22 U.S.C. 2357], to the Secretary of State and to the Administrator of the Agency for International Development, respec- tively, for matters within their respective areas of re- sponsibility; and (B) the functions in the first proviso under the head- ing ‘‘Population, Development Assistance,’’ contained in title II of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1995 (Public Law 103–306) [108 Stat. 1611], and in comparable provi- sions in successor legislation, to the Secretary of State relating to those organizations and programs for which the Secretary of State has funding responsibility. The delegations of authority described in subpara- graph (A) are in addition to other delegations of such authority to the International Development Coopera- tion Agency. The delegation of authority described above in sub- paragraph (B) shall be exercised in lieu of the delega- tion of the comparable authority to the Administrator of the Agency for International Development by sec- tion 1–102(a)(7) of Executive Order No. 12163, as amend- ed [22 U.S.C. 2381 note]. Any reference in this memorandum to any Act, order, determination, or delegation of authority shall be deemed to be a reference to such Act, order, determina- tion, or delegation of authority as amended from time to time. The functions delegated by this memorandum may be redelegated within the Department of State or the Agency for International Development, as appropriate. The Secretary of State is authorized and directed to publish this memorandum in the Federal Register. WILLIAM J. CLINTON. § 2358. Foreign and domestic excess property (a) Advance acquisition of property; special ac- count for payment of costs; limitation; use of property It is the sense of the Congress that in fur- nishing assistance under subchapter I of this chapter excess personal property, or (if a sub- stantial savings would occur) other property al- ready owned by an agency of the United States Government, shall be utilized wherever prac- ticable in lieu of or supplementary to the pro- curement of new items for United States-as- sisted projects and programs. The President is authorized to maintain in a separate account, which shall, notwithstanding section 1535(d) of title 31, be free from fiscal year limitation, $5,000,000 of funds made available under part I of subchapter I of this chapter, which may be used to pay costs (including personnel costs) of acqui- sition, storage, renovation and rehabilitation, packing, crating, handling, transportation, and related costs of property classified as domestic or foreign excess property pursuant to chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41, any property available from an agency of the United States Government, or other property, in advance of known require- ments therefor for use in furtherance of the pur- poses of subchapter I of this chapter: Provided, That the amount of property classified as do- mestic excess property pursuant to chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of sub- title I of title 41 held at any one time pursuant to this section shall not exceed $15,000,000 in total original acquisition cost. Property ac- quired pursuant to the preceding sentence may be furnished (1) pursuant to any provision of subchapter I of this chapter for which funds are authorized for the furnishing of assistance, in which case the separate account established pur- suant to this section shall be repaid from funds made available for such provision for all costs incurred, or (2) pursuant to section 2357 of this title, in which case such separate account shall be repaid in accordance with the provisions of that section for all costs incurred. (b) Transfer of domestic excess property Property classified as domestic excess prop- erty under chapters 1 to 11 of title 40 and divi- sion C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41 shall not be transferred to the agency primarily re- sponsible for administering subchapter I of this chapter for use pursuant to the provisions of subchapter I of this chapter or section 2357 of this title unless (1) such property is transferred for use exclusively by an agency of the United