22 U.S.C. § 2291j — Annual certification procedures

Page 741 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2291j Subsec. (a)(12). Pub. L. 117–263, § 5555(a)(2), added par. (12). 2021—Subsec. (a)(10). Pub. L. 117–81, § 6610(c), added par. (10) relating to separate section that contains iden- tification of the countries that are the most significant sources of illicit fentanyl and fentanyl analogues. Pub. L. 117–81, § 5102(b), added par. (10) relating to sep- arate section that contains an identification of all United States Government-supported units funded by the Bureau of International Narcotics and Law En- forcement Affairs. 2019—Subsec. (a)(9). Pub. L. 116–92 added par. (9). 2006—Subsec. (a)(8). Pub. L. 109–177 added par. (8). 1995—Pub. L. 104–66, § 1112(c)(1), struck out ‘‘for fiscal year 1995’’ after ‘‘Reporting requirements’’ in section catchline. Subsec. (c). Pub. L. 104–66, § 1112(c)(2), struck out heading and text of subsec. (c). Text read as follows: ‘‘This section applies only during fiscal year 1995. Sec- tion 2291i of this title does not apply during that fiscal year.’’ 1994—Pub. L. 103–447, § 101(f)(1)(A), substituted ‘‘for fiscal year 1995’’ for ‘‘for fiscal years 1993 and 1994’’ in section catchline. Subsec. (a). Pub. L. 103–447, § 101(f)(1)(B)(i), sub- stituted ‘‘March 1’’ for ‘‘April 1’’ in introductory provi- sions. Subsec. (a)(3)(B) to (D). Pub. L. 103–447, § 101(f)(1)(B)(ii), redesignated subpars. (C) and (D) as (B) and (C), respectively, and struck out former subpar. (B) which read as follows: ‘‘the significant direct or indi- rect sources of narcotics and psychotropic drugs and other controlled substances significantly affecting the United States;’’. Subsec. (c). Pub. L. 103–447, § 101(f)(1)(D), (E), redesig- nated subsec. (d) as (c) and amended heading and text generally. Prior to amendment, text read as follows: ‘‘This section applies only during fiscal years 1993 and 1994. Section 2291i of this title does not apply during those fiscal years.’’ Pub. L. 103–447, § 101(f)(1)(C), struck out heading and text of subsec. (c). Text read as follows: ‘‘As used in this section— ‘‘(1) the term ‘precursor chemical’ has the same meaning as the term ‘listed chemical’ has under para- graph (33) of section 802 of title 21; and ‘‘(2) the term ‘major money laundering country’ means a country whose financial institutions engage in currency transactions involving significant amounts of proceeds from international narcotics trafficking.’’ Subsec. (d). Pub. L. 103–447, § 101(f)(1)(D), redesignated subsec. (d) as (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by section 6610(c) of Pub. L. 117–81 effec- tive 90 days after Dec. 27, 2021, see section 6610(e) of Pub. L. 117–81, set out as a note under section 2291 of this title. RULE OF CONSTRUCTION Nothing in subtitle C (§§ 5551–5558) of title LV of div. E of Pub. L. 117–263, or the amendments made by that subtitle, to be construed as affecting the prioritization of extradition requests, see section 5557 of Pub. L. 117–263, set out as a note under section 2291l of this title. TRANSFER OF FUNCTIONS For transfer of functions, personnel, assets, and li- abilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Sec- retary of Homeland Security, and for treatment of re- lated references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of Novem- ber 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Se- curity, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended gen- erally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6. For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. PLAN TO ADDRESS DIVERSION OF PRECURSOR CHEMICALS Pub. L. 109–177, title VII, § 722(d), Mar. 9, 2006, 120 Stat. 269, required the Secretary of State, not later than 180 days after the date on which the President transmits the report required by subsec. (a) of this sec- tion, to submit to Congress a comprehensive plan to ad- dress the diversion of the chemicals described in sub- sec. (a)(8)(A)(i) of this section to the illicit production of methamphetamine for each identified country for which the President has not submitted a certification under section 2291j(b) of this title. STATUTORY REFERENCES TO ANNUAL REPORTS, CERTIFICATIONS, AND DEFINITIONS Pub. L. 102–583, § 6(a), Nov. 2, 1992, 106 Stat. 4932, pro- vided that after Sept. 30, 1994, any reference in any pro- vision of law to section 2291h or 2291j of this title would be deemed a reference to the corresponding provision of section 2291i or 2291k of this title, respectively, unless the context required otherwise; any reference in any provision of law enacted before Nov. 2, 1992, to section 2291(e) or (i) of this title be deemed a reference to sec- tion 2291h or 2291(e) of this title, respectively; and that any reference in any provision of law enacted before Nov. 2, 1992, to section 2291(h) of this title be deemed, as of Oct. 1, 1992, to be a reference to section 2291j of this title, prior to repeal by Pub. L. 103–447, title I, § 103(a), Nov. 2, 1994, 108 Stat. 4693. Executive Documents 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. § 2291i. Repealed. Pub. L. 104–66, title I, § 1112(a), Dec. 21, 1995, 109 Stat. 723 Section, Pub. L. 87–195, pt. I, § 489A, as added Pub. L. 102–583, § 5(a), Nov. 2, 1992, 106 Stat. 4921; amended Pub. L. 103–447, title I, § 101(f)(2), Nov. 2, 1994, 108 Stat. 4692, related to reporting requirements applicable after Sept. 30, 1995. § 2291j. Annual certification procedures (a) Withholding of bilateral assistance and oppo- sition to multilateral development assistance (1) Bilateral assistance Fifty percent of the United States assistance allocated each fiscal year in the report re- quired by section 2413 of this title for each major illicit drug producing country, major drug-transit country, or country identified pursuant to clause (i) or (ii) of section 2291h(a)(8)(A) of this title shall be withheld from obligation and expenditure, except as Page 742 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2291j provided in subsection (b). This paragraph shall not apply with respect to a country if the President determines that its application to that country would be contrary to the na- tional interest of the United States, except that any such determination shall not take ef- fect until at least 15 days after the President submits written notification of that deter- mination to the appropriate congressional committees in accordance with the procedures applicable to reprogramming notifications under section 2394–1 of this title. (2) Multilateral assistance The Secretary of the Treasury shall instruct the United States Executive Director of each multilateral development bank to vote, on and after March 1 of each year, against any loan or other utilization of the funds of their respec- tive institution to or for any major illicit drug producing country or major drug-transit coun- try (as determined under subsection (h)) or country identified pursuant to clause (i) or (ii) of section 2291h(a)(8)(A) of this title, except as provided in subsection (b). For purposes of this paragraph, the term ‘‘multilateral develop- ment bank’’ means the International Bank for Reconstruction and Development, the Inter- national Development Association, the Inter- American Development Bank, the Asian De- velopment Bank, the African Development Bank, and the European Bank for Reconstruc- tion and Development. (b) Certification procedures (1) What must be certified Subject to subsection (d), the assistance withheld from a country pursuant to sub- section (a)(1) may be obligated and expended, and the requirement of subsection (a)(2) to vote against multilateral development bank assistance to a country shall not apply, if the President determines and certifies to the Con- gress, at the time of the submission of the re- port required by section 2291h(a) of this title, that— (A) during the previous year the country has cooperated fully with the United States, or has taken adequate steps on its own, to achieve full compliance with the goals and objectives established by the United Nations Convention Against Illicit Traffic in Nar- cotic Drugs and Psychotropic Substances; or (B) for a country that would not otherwise qualify for certification under subparagraph (A), the vital national interests of the United States require that the assistance withheld pursuant to subsection (a)(1) be provided and that the United States not vote against multilateral development bank as- sistance for that country pursuant to sub- section (a)(2). (2) Considerations regarding cooperation In making the determination described in paragraph (1)(A), the President shall consider the extent to which the country has— (A) met the goals and objectives of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, including action on such issues as illicit cultivation, production, distribu- tion, sale, transport and financing, and money laundering, asset seizure, extra- dition, mutual legal assistance, law enforce- ment and transit cooperation, precursor chemical control, and demand reduction; (B) accomplished the goals described in an applicable bilateral narcotics agreement with the United States or a multilateral agreement; and (C) taken legal and law enforcement meas- ures to prevent and punish public corrup- tion, especially by senior government offi- cials, that facilitates the production, proc- essing, or shipment of narcotic and psycho- tropic drugs and other controlled sub- stances, or that discourages the investiga- tion or prosecution of such acts. (3) Information to be included in national in- terest certification If the President makes a certification with respect to a country pursuant to paragraph (1)(B), the President shall include in such cer- tification— (A) a full and complete description of the vital national interests placed at risk if United States bilateral assistance to that country is terminated pursuant to this sec- tion and multilateral development bank as- sistance is not provided to such country; and (B) a statement weighing the risk de- scribed in subparagraph (A) against the risks posed to the vital national interests of the United States by the failure of such country to cooperate fully with the United States in combating narcotics or to take adequate steps to combat narcotics on its own. (c) Licit opium producing countries The President may make a certification under subsection (b)(1)(A) with respect to a major il- licit drug producing country, or major drug- transit country, that is a producer of licit opium only if the President determines that such coun- try maintains licit production and stockpiles at levels no higher than those consistent with licit market demand, and has taken adequate steps to prevent significant diversion of its licit cul- tivation and production into the illicit markets and to prevent illicit cultivation and produc- tion. (d) Congressional review Subsection (e) shall apply if, within 30 cal- endar days after receipt of a certification sub- mitted under subsection (b) at the time of sub- mission of the report required by section 2291h(a) of this title, the Congress enacts a joint resolution disapproving the determination of the President contained in such certification. (e) Denial of assistance for countries decertified If the President does not make a certification under subsection (b) with respect to a country or the Congress enacts a joint resolution dis- approving such certification, then until such time as the conditions specified in subsection (f) are satisfied— (1) funds may not be obligated for United States assistance for that country, and funds previously obligated for United States assist- ance for that country may not be expended for Page 743 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2291j the purpose of providing assistance for that country; and (2) the requirement to vote against multilat- eral development bank assistance pursuant to subsection (a)(2) shall apply with respect to that country, without regard to the date speci- fied in that subsection. (f) Recertification Subsection (e) shall apply to a country de- scribed in that subsection until— (1) the President, at the time of submission of the report required by section 2291h(a) of this title, makes a certification under sub- section (b)(1)(A) or (b)(1)(B) with respect to that country, and the Congress does not enact a joint resolution under subsection (d) dis- approving the determination of the President contained in that certification; or (2) the President, at any other time, makes the certification described in subsection (b)(1)(B) with respect to that country, except that this paragraph applies only if either— (A) the President also certifies that— (i) that country has undergone a funda- mental change in government, or (ii) there has been a fundamental change in the conditions that were the reason— (I) why the President had not made a certification with respect to that coun- try under subsection (b)(1)(A), or (II) if he had made such a certification and the Congress enacted a joint resolu- tion disapproving the determination con- tained in the certification, why the Con- gress enacted that joint resolution; or (B) the Congress enacts a joint resolution approving the determination contained in the certification under subsection (b)(1)(B). Any certification under subparagraph (A) of paragraph (2) shall discuss the justification for the certification. (g) Senate procedures Any joint resolution under this section shall be considered in the Senate in accordance with the provisions of section 601(b) of the Inter- national Security Assistance and Arms Export Control Act of 1976. (h) Determining major drug-transit and major il- licit drug producing countries Not later than November 1 of each year, the President shall notify the appropriate commit- tees of the Congress of which countries have been determined to be major drug-transit coun- tries, and which countries have been determined to be major illicit drug producing countries, for purposes of this chapter. (Pub. L. 87–195, pt. I, § 490, as added Pub. L. 102–583, § 5(a), Nov. 2, 1992, 106 Stat. 4924; amend- ed Pub. L. 103–447, title I, § 101(g)(1), Nov. 2, 1994, 108 Stat. 4692; Pub. L. 104–66, title I, § 1112(d), Dec. 21, 1995, 109 Stat. 724; Pub. L. 109–177, title VII, § 722(b), Mar. 9, 2006, 120 Stat. 268.) Editorial Notes REFERENCES IN TEXT Section 601(b) of the International Security Assist- ance and Arms Export Control Act of 1976, referred to in subsec. (g), is section 601(b) of Pub. L. 94–329, title VI, June 30, 1976, 90 Stat. 765, which is not classified to the Code. This chapter, referred to in subsec. (h), 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 2006—Subsec. (a)(1). Pub. L. 109–177, § 722(b)(1), sub- stituted ‘‘major illicit drug producing country, major drug-transit country, or country identified pursuant to clause (i) or (ii) of section 2291h(a)(8)(A) of this title’’ for ‘‘major illicit drug producing country or major drug-transit country’’. Subsec. (a)(2). Pub. L. 109–177, § 722(b)(2), inserted ‘‘or country identified pursuant to clause (i) or (ii) of sec- tion 2291h(a)(8)(A) of this title’’ after ‘‘(as determined under subsection (h))’’. 1995—Pub. L. 104–66, § 1112(d)(1), struck out ‘‘for fiscal year 1995’’ after ‘‘certification procedures’’ in section catchline. Subsec. (i). Pub. L. 104–66, § 1112(d)(2), struck out heading and text of subsec. (i). Text read as follows: ‘‘This section applies only during fiscal year 1995. Sec- tion 2291k of this title does not apply during that fiscal year.’’ 1994—Pub. L. 103–447, § 101(g)(1)(A), substituted ‘‘for fiscal year 1995’’ for ‘‘for fiscal years 1993 and 1994’’ in section catchline. Subsec. (a)(1). Pub. L. 103–447, § 101(g)(1)(B), struck out ‘‘(as determined under subsection (h) of this sec- tion)’’ after ‘‘drug-transit country’’. Subsec. (a)(2). Pub. L. 103–447, § 101(g)(1)(C), sub- stituted ‘‘March 1’’ for ‘‘April 1’’. Subsec. (c). Pub. L. 103–447, § 101(g)(1)(D), substituted ‘‘that such country maintains licit production and stockpiles at levels no higher than those consistent with licit market demand, and has taken adequate steps to prevent significant diversion of its licit cul- tivation and production into the illicit markets and to prevent illicit cultivation and production.’’ for ‘‘that such country has taken adequate steps to prevent sig- nificant diversion of its licit cultivation and produc- tion into the illicit market, maintains production and stockpiles at levels no higher than those consistent with licit market demand, and prevents illicit cultiva- tion and production.’’ Subsec. (d). Pub. L. 103–447, § 101(g)(1)(E), substituted ‘‘30 calendar days’’ for ‘‘45 calendar days’’. Subsec. (g). Pub. L. 103–447, § 101(g)(1)(F), substituted ‘‘Senate procedures’’ for ‘‘Congressional review proce- dures’’ in heading, struck out designation and heading of par. (1), and struck out heading and text of par. (2). Text read as follows: ‘‘For the purpose of expediting the consideration and enactment of joint resolutions under this section, a motion to proceed to the consideration of any such joint resolution after it has been reported by the appropriate committee shall be treated as high- ly privileged in the House of Representatives.’’ Subsec. (h). Pub. L. 103–447, § 101(g)(1)(G), struck out ‘‘for fiscal years 1993 and 1994’’ after ‘‘drug producing countries’’ in heading and substituted ‘‘November 1’’ for ‘‘January 1’’ in text. Subsec. (i). Pub. L. 103–447, § 101(g)(1)(H), amended heading and text of subsec. (i) generally. Prior to amendment, text read as follows: ‘‘This section applies only during fiscal years 1993 and 1994. During those fis- cal years, section 2291k of this title does not apply and the definitions provided in section 2291(e)(2) and (5) of this title do not apply.’’ Executive Documents DELEGATION OF FUNCTIONS For delegation of functions of President under this section, see Ex. Ord. No. 12163, Sept. 29, 1979, 44 F.R. Page 744 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 2291j–1 1 See References in Text note below. 56673, as amended, set out as a note under section 2381 of this title. CERTIFICATION FOR MAJOR ILLICIT DRUG PRODUCING AND DRUG TRANSIT COUNTRIES Determination of President of the United States, No. 2001–12, Mar. 1, 2001, 66 F.R. 14454, provided: Memorandum for the Secretary of State By virtue of the authority vested in me by section 490(b)(1)(A) of the Foreign Assistance Act of 1961, as amended [22 U.S.C. 2291j(b)(1)(A)] (the ‘‘Act’’), I hereby determine and certify that the following major illicit drug producing and/or major illicit drug transit coun- tries have cooperated fully with the United States, or have taken adequate steps on their own, to achieve full compliance with the goals and objectives of the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances: The Bahamas, Bolivia, Brazil, People’s Republic of China, Colombia, Dominican Republic, Ecuador, Gua- temala, India, Jamaica, Laos, Mexico, Nigeria, Paki- stan, Panama, Paraguay, Peru, Thailand, Venezuela, and Vietnam By virtue of the authority vested in me by section 490(b)(1)(B) of the Act, I hereby determine and certify that, for the following major illicit drug producing and/ or major illicit drug transit countries that do not qual- ify for certification under section 490(b)(1)(A), the vital national interests of the United States require that as- sistance not be withheld and that the United States not vote against multilateral development bank assistance: Cambodia and Haiti Analysis of the relevant U.S. vital national interests and risks posed thereto, as required under section 490(b)(3) of the Act, is attached for these countries [not set out in the Code]. I have determined that the following major illicit drug producing and/or major illicit drug transit coun- tries do not meet the standards for certification set forth in section 490(b): Afghanistan and Burma In making these determinations, I have considered the factors set forth in section 490 of the Act, based on the information contained in the International Nar- cotics Control Strategy Report of 2001. Given that the performance of each of these countries has differed, I have attached an explanatory statement for each of the countries subject to this determination [not set out in the Code]. You are hereby authorized and directed to report this determination to the Congress immediately and to pub- lish it in the Federal Register. GEORGE W. BUSH. Prior certifications for major narcotics producing and transit countries were contained in the following: Determination of President of the United States, No. 2000–16, Feb. 29, 2000, 65 F.R. 15797. Determination of President of the United States, No. 99–15, Feb. 26, 1999, 64 F.R. 11319. Determination of President of the United States, No. 98–15, Feb. 26, 1998, 63 F.R. 12937. Determination of President of the United States, No. 97–18, Feb. 28, 1997, 62 F.R. 11589. Determination of President of the United States, No. 96–13, Mar. 1, 1996, 61 F.R. 9891. Determination of President of the United States, No. 95–15, Feb. 28, 1995, 60 F.R. 12859. Determination of President of the United States, No. 94–22, Apr. 1, 1994, 59 F.R. 17231. Determination of President of the United States, No. 93–18, Mar. 31, 1993, 58 F.R. 19033. Determination of President of the United States, No. 92–18, Feb. 28, 1992, 57 F.R. 8571. Determination of President of the United States, No. 91–22, Mar. 1, 1991, 56 F.R. 10773. Determination of President of the United States, No. 90–12, Feb. 28, 1990, 55 F.R. 10597. Determination of President of the United States, No. 89–11, Feb. 28, 1989, 54 F.R. 9413. Determination of President of the United States, No. 88–10, Feb. 29, 1988, 53 F.R. 11487. PRESIDENTIAL DETERMINATION UNDER SECTION 490(b)(1)(A) OF THE FOREIGN ASSISTANCE ACT RELATING TO THE LARGEST EXPORTING AND IMPORTING COUNTRIES OF CERTAIN PRECURSOR CHEMICALS Determination of President of the United States, No. 2007–14, Feb. 28, 2007, 72 F.R. 10881, provided: Memorandum for the Secretary of State Pursuant to section 490(b)(1)(A) of the Foreign Assist- ance Act, I hereby determine that the top five export- ing and importing countries of pseudoephedrine and ephedrine in 2005 (Belgium, China, Germany, India, In- donesia, Mexico, Singapore, South Africa, South Korea, Switzerland, Taiwan, and the United Kingdom) have co- operated fully with the United States or have taken adequate steps on their own to achieve full compliance with the goals and objectives established by the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. You are directed to publish this determination in the Federal Register, and are authorized and directed to transmit to the Congress the report under section 722 of the Combat Methamphetamine Epidemic Act [of 2005]. GEORGE W. BUSH. § 2291j–1. International drug control certification procedures During any fiscal year, funds that would oth- erwise be withheld from obligation or expendi- ture under section 2291j of this title may be obli- gated or expended beginning October 1 of such fiscal year provided that: (1) Report Not later than September 15 of the previous fiscal year the President has submitted to the appropriate congressional committees a report identifying each country determined by the President to be a major drug transit country or major illicit drug producing country as de- fined in section 2291(e) of this title. (2) Designation and justification In each report under paragraph (1), the President shall— (A) designate each country, if any, identi- fied in such report that has failed demon- strably, during the previous 12 months, to make substantial efforts— (i) to adhere to its obligations under international counternarcotics agree- ments; and (ii) to take the counternarcotics meas- ures set forth in section 2291h(a)(1) of this title; (B) designate each country, if any, identi- fied under section 2291h(a)(10) of this title that has failed to adopt and utilize sched- uling procedures for illicit drugs that are comparable to the procedures authorized under title II 1 of the Controlled Substances Act (21 U.S.C. 811 et seq.) for adding drugs and other substances to the controlled sub- stances schedules; (C) designate each country, if any, identi- fied under section 2291h(a)(10) of this title that has not taken significant steps to pros- ecute individuals involved in the illicit man- ufacture or distribution of controlled sub-