
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 22USC2321j]

 
               TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
 
                     CHAPTER 32--FOREIGN ASSISTANCE
 
              SUBCHAPTER II--MILITARY ASSISTANCE AND SALES
 
                      Part II--Military Assistance
 
Sec. 2321j. Authority to transfer excess defense articles


(a) Authorization

    The President is authorized to transfer excess defense articles 
under this section to countries for which receipt of such articles was 
justified pursuant to the annual congressional presentation documents 
for military assistance programs, or for programs under part VIII of 
subchapter I of this chapter, submitted under section 2394 of this 
title, or for which receipt of such articles was separately justified to 
the Congress, for the fiscal year in which the transfer is authorized.

(b) Limitations on transfers

    (1) The President may transfer excess defense articles under this 
section only if--
        (A) such articles are drawn from existing stocks of the 
    Department of Defense;
        (B) funds available to the Department of Defense for the 
    procurement of defense equipment are not expended in connection with 
    the transfer;
        (C) the transfer of such articles will not have an adverse 
    impact on the military readiness of the United States;
        (D) with respect to a proposed transfer of such articles on a 
    grant basis, such a transfer is preferable to a transfer on a sales 
    basis, after taking into account the potential proceeds from, and 
    likelihood of, such sales, and the comparative foreign policy 
    benefits that may accrue to the United States as the result of a 
    transfer on either a grant or sales basis;
        (E) the President determines that the transfer of such articles 
    will not have an adverse impact on the national technology and 
    industrial base and, particularly, will not reduce the opportunities 
    of entities in the national technology and industrial base to sell 
    new or used equipment to the countries to which such articles are 
    transferred; and
        (F) the transfer of such articles is consistent with the policy 
    framework for the Eastern Mediterranean established under section 
    2373 of this title.

    (2) Accordingly, for the four-year period beginning on October 1, 
1996, and thereafter for the four-period \1\ beginning on October 1, 
2000, the President shall ensure that excess defense articles offered to 
Greece and Turkey under this section will be made available consistent 
with the manner in which the President made available such excess 
defense articles during the four-year period that began on October 1, 
1992, pursuant to section 573(e) of the Foreign Operations, Export 
Financing, and Related Programs Appropriations Act, 1990.
---------------------------------------------------------------------------
    \1\ So in original. Probably should be ``four-year period''.
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(c) Terms of transfers

                  (1) No cost to recipient country

        Excess defense articles may be transferred under this section 
    without cost to the recipient country.

                            (2) Priority

        Notwithstanding any other provision of law, the delivery of 
    excess defense articles under this section to member countries of 
    the North Atlantic Treaty Organization (NATO) on the southern and 
    southeastern flank of NATO and to major non-NATO allies on such 
    southern and southeastern flank shall be given priority to the 
    maximum extent feasible over the delivery of such excess defense 
    articles to other countries.

(d) Waiver of requirement for reimbursement of Department of Defense 
        expenses

    Section 2392(d) of this title shall not apply with respect to 
transfers of excess defense articles (including transportation and 
related costs) under this section.

(e) Transportation and related costs

                           (1) In general

        Except as provided in paragraph (2), funds available to the 
    Department of Defense may not be expended for crating, packing, 
    handling, and transportation of excess defense articles transferred 
    under the authority of this section.

                            (2) Exception

        The President may provide for the transportation of excess 
    defense articles without charge to a country for the costs of such 
    transportation if--
            (A) it is determined that it is in the national interest of 
        the United States to do so;
            (B) the recipient is a developing country receiving less 
        than $10,000,000 of assistance under part V of this subchapter 
        (relating to international military education and training) or 
        section 23 of the Arms Export Control Act (22 U.S.C. 2763; 
        relating to the Foreign Military Financing program) in the 
        fiscal year in which the transportation is provided;
            (C) the total weight of the transfer does not exceed 50,000 
        pounds; and
            (D) such transportation is accomplished on a space available 
        basis.

(f) Advance notification to Congress for transfer of certain excess 
        defense articles

                           (1) In general

        The President may not transfer excess defense articles that are 
    significant military equipment (as defined in section 47(9) of the 
    Arms Export Control Act [22 U.S.C. 2794(9)]) or excess defense 
    articles valued (in terms of original acquisition cost) at 
    $7,000,000 or more, under this section or under the Arms Export 
    Control Act (22 U.S.C. 2751 et seq.) until 30 days after the date on 
    which the President has provided notice of the proposed transfer to 
    the congressional committees specified in section 2394-1(a) of this 
    title in accordance with procedures applicable to reprogramming 
    notifications under that section.

                            (2) Contents

        Such notification shall include--
            (A) a statement outlining the purposes for which the article 
        is being provided to the country, including whether such article 
        has been previously provided to such country;
            (B) an assessment of the impact of the transfer on the 
        military readiness of the United States;
            (C) an assessment of the impact of the transfer on the 
        national technology and industrial base and, particularly, the 
        impact on opportunities of entities in the national technology 
        and industrial base to sell new or used equipment to the 
        countries to which such articles are to be transferred; and
            (D) a statement describing the current value of such article 
        and the value of such article at acquisition.

(g) Aggregate annual limitation

                           (1) In general

        The aggregate value of excess defense articles transferred to 
    countries under this section in any fiscal year may not exceed 
    $425,000,000.

                         (2) Effective date

        The limitation contained in paragraph (1) shall apply only with 
    respect to fiscal years beginning after fiscal year 1996.

(h) Congressional presentation documents

    Documents described in subsection (a) of this section justifying the 
transfer of excess defense articles shall include an explanation of the 
general purposes of providing excess defense articles as well as a table 
which provides an aggregate annual total of transfers of excess defense 
articles in the preceding year by country in terms of offers and actual 
deliveries and in terms of acquisition cost and current value. Such 
table shall indicate whether such excess defense articles were provided 
on a grant or sale basis.

(i) Excess Coast Guard property

    For purposes of this section, the term ``excess defense articles'' 
shall be deemed to include excess property of the Coast Guard, and the 
term ``Department of Defense'' shall be deemed, with respect to such 
excess property, to include the Coast Guard.

(Pub. L. 87-195, pt. II, Sec. 516, as added Pub. L. 99-661, div. A, 
title XI, Sec. 1101, Nov. 14, 1986, 100 Stat. 3960; amended Pub. L. 100-
202, Sec. 101(b) [title VIII, Sec. 8143], Dec. 22, 1987, 101 Stat. 1321-
43, 1329-89; Pub. L. 101-189, div. A, title IX, Sec. 934, Nov. 29, 1989, 
103 Stat. 1538; Pub. L. 101-513, title V, Sec. 589, Nov. 5, 1990, 104 
Stat. 2057; Pub. L. 102-190, div. A, title X, Sec. 1049(a), Dec. 5, 
1991, 105 Stat. 1469; Pub. L. 102-391, title V, Sec. 574, Oct. 6, 1992, 
106 Stat. 1683; Pub. L. 102-484, div. A, title XIII, Sec. 1313, Oct. 23, 
1992, 106 Stat. 2548; Pub. L. 103-160, div. A, title XI, 
Sec. 1182(c)(2), title XIV, Sec. 1421, Nov. 30, 1993, 107 Stat. 1772, 
1829; Pub. L. 103-236, title VII, Sec. 731(a), Apr. 30, 1994, 108 Stat. 
502; Pub. L. 104-106, div. A, title X, Sec. 1012(g)(1), Feb. 10, 1996, 
110 Stat. 422; Pub. L. 104-164, title I, Sec. 104(a), July 21, 1996, 110 
Stat. 1424; Pub. L. 106-113, div. B, Sec. 1000(a)(7) [div. B, title XII, 
Secs. 1211(b), 1213], Nov. 29, 1999, 113 Stat. 1536, 1501A-497, 1501A-
498; Pub. L. 106-280, title I, Sec. 122, Oct. 6, 2000, 114 Stat. 851.)

                       References in Text

    Section 573(e) of the Foreign Operations, Export Financing, and 
Related Programs Appropriations Act, 1990, referred to in subsec. 
(b)(2), is section 573(e) of Pub. L. 101-167, which is set out in a note 
below.
    The Arms Export Control Act, referred to in subsec. (f)(1), is Pub. 
L. 90-629, Oct. 22, 1968, 82 Stat. 1320, as amended, which is classified 
principally to chapter 39 (Sec. 2751 et seq.) of this title. For 
complete classification of this Act to the Code, see Short Title note 
set out under section 2751 of this title and Tables.


                            Prior Provisions

    A prior section 2321j, Pub. L. 87-195, pt. II, Sec. 516, as added 
Pub. L. 94-329, title I, Sec. 105, June 30, 1976, 90 Stat. 732; amended 
Pub. L. 95-92, Secs. 5(b), 7(b), Aug. 4, 1977, 91 Stat. 615, 617; Pub. 
L. 95-384, Sec. 7(b), Sept. 26, 1978, 92 Stat. 732; Pub. L. 96-92, 
Sec. 5(c), Oct. 29, 1979, 93 Stat. 703; Pub. L. 96-533, title I, 
Sec. 112(d), Dec. 16, 1980, 94 Stat. 3139, provided for termination of 
authorities contained in this part other than the authorities contained 
in sections 2318, 2321h, and 2321i of this title, prior to repeal by 
Pub. L. 97-113, title I, Sec. 110(d), Dec. 29, 1981, 95 Stat. 1526.


                               Amendments

    2000--Subsec. (e)(2)(C). Pub. L. 106-280 substituted ``50,000'' for 
``25,000''.
    1999--Subsec. (b)(2). Pub. L. 106-113, Sec. 1000(a)(7) [title XII, 
Sec. 1211(b)], inserted ``and thereafter for the four-period beginning 
on October 1, 2000,'' after ``October 1, 1996,''.
    Subsec. (g)(1). Pub. L. 106-113, Sec. 1000(a)(7) [title XII, 
Sec. 1213], substituted ``$425,000,000'' for ``$350,000,000''.
    1996--Pub. L. 104-164 amended section generally, expanding 
geographic scope of President's authority to transfer excess defense 
articles, including Coast Guard property and permitting waiver of 
Department of Defense reimbursement, to any country for military 
assistance programs or international narcotics control, so long as such 
transfer is preferable to sale and is consistent within congressionally 
documented Eastern Mediterranean policy requirements, meets certain 
terms of transfer requirements including preference for NATO and non-
NATO allies on southern flank, complies with advance notification to 
Congress for certain excess defense articles, and is within aggregate 
annual limitations of $350,000,000 in value, for provisions which 
authorized President to transfer excess defense articles to 
predominantly NATO countries on southern flank for purpose of 
modernization of their defense capabilities.
    Subsec. (g). Pub. L. 104-106 added subsec. (g) which prohibited 
certain transfers of vessels on a grant basis.
    1994--Subsec. (b)(4). Pub. L. 103-236 added par. (4).
    1993--Subsec. (a). Pub. L. 103-160, Sec. 1182(c)(2), made technical 
amendment to Pub. L. 102-484, Sec. 1313(2). See 1992 Amendment note 
below.
    Subsec. (a)(3). Pub. L. 103-160, Sec. 1421, inserted ``or fiscal 
year 1992'' after ``fiscal year 1991''.
    1992--Subsec. (a). Pub. L. 102-484, Sec. 1313(4), which directed the 
amendment of subsec. (a) by striking ``and those countries which 
received Foreign Military Financing (FMF) assistance in fiscal year 1990 
and which, as of October 1, 1990, contributed armed forces to deter 
Iraqi aggression in the Arabian Gulf,'', could not be executed because 
that language did not appear subsequent to amendment by Pub. L. 102-391. 
See below.
    Pub. L. 102-484, Sec. 1313(3), inserted ``and (3) to those countries 
which, as of October 1, 1990, contributed armed forces to deter Iraqi 
aggression in the Arabian Gulf, and which either received Foreign 
Military Financing (FMF) assistance in fiscal year 1990 or are in the 
Near East Region and received Foreign Military Financing (FMF) 
assistance in fiscal year 1991,'' after ``southeastern flank of NATO 
which are eligible for United States security assistance,''.
    Pub. L. 102-484, Sec. 1313(2), as amended by Pub. L. 103-160, 
Sec. 1182(c)(2), substituted ``structure, (2)'' for ``structure, and''.
    Pub. L. 102-484, Sec. 1313(1), inserted ``(1)'' after ``may 
transfer''.
    Pub. L. 102-391 repealed the amendment by Pub. L. 101-513. See 1990 
Amendment note below.
    1991--Subsec. (a). Pub. L. 102-190, Sec. 1049(a)(1), struck out 
``during the fiscal years 1987 through 1991,'' before ``the President 
may transfer''.
    Subsec. (f). Pub. L. 102-190, Sec. 1049(a)(2), added subsec. (f).
    1990--Subsec. (a). Pub. L. 101-513, which directed amendment of 
subsec. (a) by inserting ``and those countries which received Foreign 
Military Financing (FMF) assistance in fiscal year 1990 and which, as of 
October 1, 1990, contributed armed forces to deter Iraqi aggression in 
the Arabian Gulf,'' after the second occurrence of the words ``United 
States security assistance,'', was repealed by Pub. L. 102-391. See 1992 
Amendment note above.
    1989--Subsec. (a). Pub. L. 101-189 substituted ``during the fiscal 
years 1987 through 1991'' for ``during the fiscal years 1987, 1988, and 
1989'' and inserted at end ``Transfers to recipient countries under this 
subsection shall be consistent with the policy framework for the Eastern 
Mediterranean region established in section 2373 of this title.''
    1987--Subsec. (a). Pub. L. 100-202, Sec. 101(b) [title VIII, 
Sec. 8143(a), (b), (c)(1)], in first sentence substituted ``, 1988, and 
1989,'' for ``and 1988'', inserted ``, and to major non-NATO allies on 
the southern and southeastern flank of NATO which are eligible for 
United States security assistance,'' after ``military structure'', and 
inserted ``excess'' before ``defense articles'', and in second sentence 
inserted ``excess defense'' before ``articles''.
    Subsec. (b). Pub. L. 100-202, Sec. 101(b) [title VIII, 
Sec. 8143(c)(2)], in introductory text, inserted ``excess'' before 
``defense articles''.
    Subsecs. (c), (d). Pub. L. 100-202, Sec. 101(b) [title VIII, 
Sec. 8143(c)(2)], inserted ``excess'' before ``defense articles''.


                    Effective Date of 1996 Amendment

    Section 1012(g)(2) of Pub. L. 104-106 provided that: ``The amendment 
made by paragraph (1) [amending this section] shall apply with respect 
to the transfer of a vessel on or after the date of the enactment of 
this Act [Feb. 10, 1996] (other than a vessel the transfer of which is 
authorized by subsection (a) [110 Stat. 421] or by law before the date 
of the enactment of this Act).''


                    Effective Date of 1993 Amendment

    Section 1182(c)(2) of Pub. L. 103-160 provided in part that the 
amendment made by that section is effective as of Oct. 23, 1992.

                         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.


                  Mediterranean Excess Defense Articles

    Pub. L. 104-208, div. A, title I, Sec. 101(c) [title V, Sec. 535], 
Sept. 30, 1996, 110 Stat. 3009-121, 3009-153, provided that: ``For the 
four-year period beginning on October 1, 1996, the President shall 
ensure that excess defense articles will be made available under 
section[s] 516 and 519 of the Foreign Assistance Act of 1961 [22 U.S.C. 
2321j, 2321m] consistent with the manner in which the President made 
available excess defense articles under those sections during the four-
year period that began on October 1, 1992, pursuant to section 573(e) of 
the Foreign Operations, Export Financing, Related Programs 
Appropriations Act, 1990 [Pub. L. 101-167, set out below].''
    Similar provisions were contained in the following prior 
appropriation act:
    Pub. L. 104-107, title V, Sec. 536, Feb. 12, 1996, 110 Stat. 735.


                     Avoiding Duplicative Amendments

    Section 1049(b) of Pub. L. 102-190, which provided that if the 
International Cooperation Act of 1991 was enacted and made the same 
amendments to this section as did section 1049(a) of Pub. L. 102-190, 
then the duplicative amendments enacted by section 1049(a) would not 
take effect, was repealed by Pub. L. 102-484, div. A, title X, 
Sec. 1053(7), Oct. 23, 1992, 106 Stat. 2502.


       Modernization of Military Capabilities of Certain Countries

    Pub. L. 101-167, title V, Sec. 573, Nov. 21, 1989, 103 Stat. 1246, 
as amended by Pub. L. 102-391, title V, Sec. 578(a), Oct. 6, 1992, 106 
Stat. 1685, provided that:
    ``(a) Authority To Transfer Excess Defense Articles.--
        ``(1) NATO southern flank countries.--The President may 
    transfer--
            ``(A) to any NATO southern flank country which is eligible 
        for United States security assistance and which is integrated 
        into NATO's military structure; and
            ``(B) to any major non-NATO ally on the southern and 
        southeastern flank of NATO which is eligible for United States 
        security assistance, such excess defense articles as may be 
        necessary to help modernize the defense capabilities of such 
        country.
        ``(2) Major illicit drug producing countries.--Subject to 
    subsection (f), the President may transfer to any country--
            ``(A) which is a major illicit drug producing country,
            ``(B) which has a democratic government, and
            ``(C) whose armed forces do not engage in a consistent 
        pattern of gross violations of internationally recognized human 
        rights, such excess defense articles as may be necessary to 
        carry out subsection (f)(1).
        ``(3) Terms of transfers.--Excess defense articles may be 
    transferred under this section without cost to the recipient 
    country.
    ``(b) Limitations on Transfers.--The President may transfer excess 
defense articles under this section only if--
        ``(1) they are drawn from existing stocks of the Department of 
    Defense;
        ``(2) funds available to the Department of Defense for the 
    procurement of defense equipment are not expended in connection with 
    the transfer; and
        ``(3) the President determines that the transfer of the excess 
    defense articles will not have an adverse impact on the military 
    readiness of the United States.
    ``(c) Notification to Congress.--
        ``(1) Advance notice.--The President may not transfer excess 
    defense articles under this section until thirty days after the 
    President has provided notice of the proposed transfer to the 
    committees specified in paragraph (2). This notification shall 
    include--
            ``(A) a certification of the need for the transfer;
            ``(B) an assessment of the impact of the transfer on the 
        military readiness of the United States; and
            ``(C) the value of the excess defense articles to be 
        transferred.
        ``(2) Committees to be notified.--Notice shall be provided 
    pursuant to paragraph (1) to the Committee on Foreign Affairs [now 
    Committee on International Relations], and the Committee on 
    Appropriations of the House of Representatives and the Committee on 
    Armed Services, the Committee on Foreign Relations, and the 
    Committee on Appropriations of the Senate.
    ``(d) Waiver of Requirement for Reimbursement of DOD Expenses.--
Section 632(d) of the Foreign Assistance Act of 1961 [22 U.S.C. 2392(d)] 
does not apply with respect to transfers of excess defense articles 
under this section.
    ``(e) Maintenance of Military Balance in Eastern Mediterranean.--
        ``(1) United states policy.--The Congress intends that excess 
    defense articles be made available under this section consistent 
    with the United States policy, established by section 841 of the 
    International Cooperation Act of 1989 [probably means section 841 of 
    H.R. 2655, 101st Congress, which was not enacted], of maintaining 
    the military balance in the Eastern Mediterranean.
        ``(2) Maintenance of balance.--Accordingly, the President shall 
    ensure that, over the four-year period beginning on October 1, 1992, 
    the ratio of--
            ``(A) the value of excess defense articles made available 
        for Turkey under this section, to
            ``(B) the value of excess defense articles made available 
        for Greece under this section, closely approximates the ratio 
        of--
                ``(i) the amount of foreign military financing provided 
            for Turkey, to
                ``(ii) the amount of foreign military financing provided 
            for Greece.
        ``(3) Exception to requirement.--This subsection shall not apply 
    if either Greece or Turkey ceases to be eligible to receive excess 
    defense articles under subsection (a).
    ``(f) Major Illicit Drug Producing Countries in Latin America and 
the Caribbean.--
        ``(1) Purpose.--Excess defense articles shall be transferred 
    under subsection (a)(2) for the purpose of encouraging the military 
    forces of an eligible country in Latin America and the Caribbean to 
    participate with local law enforcement agencies in a comprehensive 
    national antinarcotics program, conceived and developed by the 
    government of that country, by conducting activities within that 
    country and on the high seas to prevent the production, processing, 
    trafficking, transportation, and consumption of illicit narcotic or 
    psychotrophic [sic] drugs or other controlled substances.
        ``(2) Uses of excess defense articles.--Excess defense articles 
    may be furnished to a country under subsection (a)(2) only if that 
    country ensures that those excess defense articles will be used only 
    in support of antinarcotics activities.
        ``(3) Role of the secretary of state.--The Secretary of State 
    shall determine the eligibility of countries to receive excess 
    defense articles under subsection (a)(2) and insure that any 
    transfer is coordinated with other antinarcotics enforcement 
    programs assisted by the United States Government.
        ``(4) Limitation.--The aggregate value of excess defense 
    articles transferred to a country under subsection (a)(2) in any 
    fiscal year may not exceed $10,000,000.
    ``(g) Definitions.--As used in this section--
        ``(1) the term `excess defense article' has the meaning given 
    that term by section 644(g) [probably means section 644(g) of Pub. 
    L. 87-195, which is classified to section 2403(g) of this title];
        ``(2) the term `made available' means that a good faith offer is 
    made by the United States to furnish the excess defense articles to 
    a country;
        ``(3) the term `major non-NATO ally' includes Australia, Egypt, 
    Israel, Japan, and New Zealand;
        ``(4) the term `NATO' means the North Atlantic Treaty 
    Organization; and
        ``(5) the term `NATO southern flank countries' means Greece, 
    Italy, Portugal, Spain, and Turkey.''
    [For delegation of functions of President under section 573 of Pub. 
L. 101-567, set out above, 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.]
    Provisions similar to those appearing in section 573(e) of Pub. L. 
101-167, set out above, were contained in the following prior 
appropriation acts:
    Pub. L. 100-461, title V, Sec. 569, Oct. 1, 1988, 102 Stat. 2268-43.
    Pub. L. 100-202, Sec. 101(e) [title V, Sec. 582], Dec. 22, 1987, 101 
Stat. 1329-131, 1329-182.

                  Section Referred to in Other Sections

    This section is referred to in sections 287e-2, 2305 of this title.
