From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-107 Section 1048(g)(8)]
[Document affected by Public Law 107-115 Section 548]
[CITE: 22USC2778]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 39--ARMS EXPORT CONTROL
SUBCHAPTER III--MILITARY EXPORT CONTROLS
Sec. 2778. Control of arms exports and imports
(a) Presidential control of exports and imports of defense articles and
services, guidance of policy, etc.; designation of United States
Munitions List; issuance of export licenses; negotiations
information
(1) In furtherance of world peace and the security and foreign
policy of the United States, the President is authorized to control the
import and the export of defense articles and defense services and to
provide foreign policy guidance to persons of the United States involved
in the export and import of such articles and services. The President is
authorized to designate those items which shall be considered as defense
articles and defense services for the purposes of this section and to
promulgate regulations for the import and export of such articles and
services. The items so designated shall constitute the United States
Munitions List.
(2) Decisions on issuing export licenses under this section shall
take into account whether the export of an article would contribute to
an arms race, aid in the development of weapons of mass destruction,
support international terrorism, increase the possibility of outbreak or
escalation of conflict, or prejudice the development of bilateral or
multilateral arms control or nonproliferation agreements or other
arrangements.
(3) In exercising the authorities conferred by this section, the
President may require that any defense article or defense service be
sold under this chapter as a condition of its eligibility for export,
and may require that persons engaged in the negotiation for the export
of defense articles and services keep the President fully and currently
informed of the progress and future prospects of such negotiations.
(b) Registration and licensing requirements for manufacturers,
exporters, or importers of designated defense articles and
defense services
(1)(A)(i) As prescribed in regulations issued under this section,
every person (other than an officer or employee of the United States
Government acting in an official capacity) who engages in the business
of manufacturing, exporting, or importing any defense articles or
defense services designated by the President under subsection (a)(1) of
this section shall register with the United States Government agency
charged with the administration of this section, and shall pay a
registration fee which shall be prescribed by such regulations. Such
regulations shall prohibit the return to the United States for sale in
the United States (other than for the Armed Forces of the United States
and its allies or for any State or local law enforcement agency) of any
military firearms or ammunition of United States manufacture furnished
to foreign governments by the United States under this chapter or any
other foreign assistance or sales program of the United States, whether
or not enhanced in value or improved in condition in a foreign country.
This prohibition shall not extend to similar firearms that have been so
substantially transformed as to become, in effect, articles of foreign
manufacture.
(ii)(I) As prescribed in regulations issued under this section,
every person (other than an officer or employee of the United States
Government acting in official capacity) who engages in the business of
brokering activities with respect to the manufacture, export, import, or
transfer of any defense article or defense service designated by the
President under subsection (a)(1) of this section, or in the business of
brokering activities with respect to the manufacture, export, import, or
transfer of any foreign defense article or defense service (as defined
in subclause (IV)), shall register with the United States Government
agency charged with the administration of this section, and shall pay a
registration fee which shall be prescribed by such regulations.
(II) Such brokering activities shall include the financing,
transportation, freight forwarding, or taking of any other action that
facilitates the manufacture, export, or import of a defense article or
defense service.
(III) No person may engage in the business of brokering activities
described in subclause (I) without a license, issued in accordance with
this chapter, except that no license shall be required for such
activities undertaken by or for an agency of the United States
Government--
(aa) for use by an agency of the United States Government; or
(bb) for carrying out any foreign assistance or sales program
authorized by law and subject to the control of the President by
other means.
(IV) For purposes of this clause, the term ``foreign defense article
or defense service'' includes any non-United States defense article or
defense service of a nature described on the United States Munitions
List regardless of whether such article or service is of United States
origin or whether such article or service contains United States origin
components.
(B) \1\ The prohibition under such regulations required by the
second sentence of subparagraph (A) shall not extend to any military
firearms (or ammunition, components, parts, accessories, and attachments
for such firearms) of United States manufacture furnished to any foreign
government by the United States under this chapter or any other foreign
assistance or sales program of the United States if--
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\1\ So in original. There are two subpars. designated ``(B)''.
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(i) such firearms are among those firearms that the Secretary of
the Treasury is, or was at any time, required to authorize the
importation of by reason of the provisions of section 925(e) of
title 18 (including the requirement for the listing of such firearms
as curios or relics under section 921(a)(13) of that title); and
(ii) such foreign government certifies to the United States
Government that such firearms are owned by such foreign government.
(B) \1\ A copy of each registration made under this paragraph shall
be transmitted to the Secretary of the Treasury for review regarding law
enforcement concerns. The Secretary shall report to the President
regarding such concerns as necessary.
(2) Except as otherwise specifically provided in regulations issued
under subsection (a)(1) of this section, no defense articles or defense
services designated by the President under subsection (a)(1) of this
section may be exported or imported without a license for such export or
import, issued in accordance with this chapter and regulations issued
under this chapter, except that no license shall be required for exports
or imports made by or for an agency of the United States Government (A)
for official use by a department or agency of the United States
Government, or (B) for carrying out any foreign assistance or sales
program authorized by law and subject to the control of the President by
other means.
(3)(A) For each of the fiscal years 1988 and 1989, $250,000 of
registration fees collected pursuant to paragraph (1) shall be credited
to a Department of State account, to be available without fiscal year
limitation. Fees credited to that account shall be available only for
the payment of expenses incurred for--
(i) contract personnel to assist in the evaluation of munitions
control license applications, reduce processing time for license
applications, and improve monitoring of compliance with the terms of
licenses; and
(ii) the automation of munitions control functions and the
processing of munitions control license applications, including the
development, procurement, and utilization of computer equipment and
related software.
(B) The authority of this paragraph may be exercised only to such
extent or in such amounts as are provided in advance in appropriation
Acts.
(c) Criminal violations; punishment
Any person who willfully violates any provision of this section or
section 2779 of this title, or any rule or regulation issued under
either section, or who willfully, in a registration or license
application or required report, makes any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, shall upon
conviction be fined for each violation not more than $1,000,000 or
imprisoned not more than ten years, or both.
(d) Repealed. Pub. L. 96-70, title III, Sec. 3303(a)(4), Sept. 27, 1979,
93 Stat. 499
(e) Enforcement powers of President
In carrying out functions under this section with respect to the
export of defense articles and defense services, the President is
authorized to exercise the same powers concerning violations and
enforcement which are conferred upon departments, agencies and officials
by subsections (c), (d), (e), and (g) of section 11 of the Export
Administration Act of 1979 [50 App. U.S.C. 2410(c), (d), (e), and (g)],
and by subsections (a) and (c) of section 12 of such Act [50 App. U.S.C.
2411(a) and (c)], subject to the same terms and conditions as are
applicable to such powers under such Act [50 App. U.S.C. 2401 et seq.],
except that 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 violations of this
chapter and regulations prescribed thereunder and further may commence a
civil action to recover such civil penalties, and except further that
the names of the countries and the types and quantities of defense
articles for which licenses are issued under this section shall not be
withheld from public disclosure unless the President determines that the
release of such information would be contrary to the national interest.
Nothing in this subsection shall be construed as authorizing the
withholding of information from the Congress. Notwithstanding section
11(c) of the Export Administration Act of 1979, the civil penalty for
each violation involving controls imposed on the export of defense
articles and defense services under this section may not exceed
$500,000.
(f) Periodic review of items on Munitions List; exemptions
(1) The President shall periodically review the items on the United
States Munitions List to determine what items, if any, no longer warrant
export controls under this section. The results of such reviews shall be
reported to the Speaker of the House of Representatives and to the
Committee on Foreign Relations and the Committee on Banking, Housing,
and Urban Affairs of the Senate. Such a report shall be submitted at
least 30 days before any item is removed from the Munitions List and
shall describe the nature of any controls to be imposed on that item
under the Export Administration Act of 1979 [50 App. U.S.C. 2401 et
seq.].
(2) The President may not authorize an exemption for a foreign
country from the licensing requirements of this chapter for the export
of defense items under subsection (j) of this section or any other
provision of this chapter until 30 days after the date on which the
President has transmitted to the Committee on International Relations of
the House of Representatives and the Committee on Foreign Relations of
the Senate a notification that includes--
(A) a description of the scope of the exemption, including a
detailed summary of the defense articles, defense services, and
related technical data covered by the exemption; and
(B) a determination by the Attorney General that the bilateral
agreement concluded under subsection (j) of this section requires
the compilation and maintenance of sufficient documentation relating
to the export of United States defense articles, defense services,
and related technical data to facilitate law enforcement efforts to
detect, prevent, and prosecute criminal violations of any provision
of this chapter, including the efforts on the part of countries and
factions engaged in international terrorism to illicitly acquire
sophisticated United States defense items.
(3) Paragraph (2) shall not apply with respect to an exemption for
Canada from the licensing requirements of this chapter for the export of
defense items.
(g) Identification of persons convicted or subject to indictment for
violations of certain provisions
(1) The President shall develop appropriate mechanisms to identify,
in connection with the export licensing process under this section--
(A) persons who are the subject of an indictment for, or have
been convicted of, a violation under--
(i) this section,
(ii) section 11 of the Export Administration Act of 1979 (50
U.S.C. App. 2410),
(iii) section 793, 794, or 798 of title 18 (relating to
espionage involving defense or classified information) or
section 2339A of such title (relating to providing material
support to terrorists),
(iv) section 16 of the Trading with the Enemy Act (50 U.S.C.
App. 16),
(v) section 206 of the International Emergency Economic
Powers Act (relating to foreign assets controls; 50 U.S.C. App.
1705) [50 U.S.C. 1705],
(vi) section 30A of the Securities Exchange Act of 1934 (15
U.S.C. 78dd-1) or section 104 of the Foreign Corrupt Practices
Act (15 U.S.C. 78dd-2),
(vii) chapter 105 of title 18 (relating to sabotage),
(viii) section 4(b) of the Internal Security Act of 1950
(relating to communication of classified information; 50 U.S.C.
783(b)),
(ix) section 57, 92, 101, 104, 222, 224, 225, or 226 of the
Atomic Energy Act of 1954 (42 U.S.C. 2077, 2122, 2131, 2134,
2272, 2274, 2275, and 2276),
(x) section 601 of the National Security Act of 1947
(relating to intelligence identities protection; 50 U.S.C. 421),
or
(xi) section 603(b) or (c) of the Comprehensive Anti-
Apartheid Act of 1986 (22 U.S.C. 5113(b) and (c));
(B) persons who are the subject of an indictment or have been
convicted under section 371 of title 18 for conspiracy to violate
any of the statutes cited in subparagraph (A); and
(C) persons who are ineligible--
(i) to contract with,
(ii) to receive a license or other form of authorization to
export from, or
(iii) to receive a license or other form of authorization to
import defense articles or defense services from,
any agency of the United States Government.
(2) The President shall require that each applicant for a license to
export an item on the United States Munitions List identify in the
application all consignees and freight forwarders involved in the
proposed export.
(3) If the President determines--
(A) that an applicant for a license to export under this section
is the subject of an indictment for a violation of any of the
statutes cited in paragraph (1),
(B) that there is reasonable cause to believe that an applicant
for a license to export under this section has violated any of the
statutes cited in paragraph (1), or
(C) that an applicant for a license to export under this section
is ineligible to contract with, or to receive a license or other
form of authorization to import defense articles or defense services
from, any agency of the United States Government,
the President may disapprove the application. The President shall
consider requests by the Secretary of the Treasury to disapprove any
export license application based on these criteria.
(4) A license to export an item on the United States Munitions List
may not be issued to a person--
(A) if that person, or any party to the export, has been
convicted of violating a statute cited in paragraph (1), or
(B) if that person, or any party to the export, is at the time
of the license review ineligible to receive export licenses (or
other forms of authorization to export) from any agency of the
United States Government,
except as may be determined on a case-by-case basis by the President,
after consultation with the Secretary of the Treasury, after a thorough
review of the circumstances surrounding the conviction or ineligibility
to export and a finding by the President that appropriate steps have
been taken to mitigate any law enforcement concerns.
(5) A license to export an item on the United States Munitions List
may not be issued to a foreign person (other than a foreign government).
(6) The President may require a license (or other form of
authorization) before any item on the United States Munitions List is
sold or otherwise transferred to the control or possession of a foreign
person or a person acting on behalf of a foreign person.
(7) The President shall, in coordination with law enforcement and
national security agencies, develop standards for identifying high-risk
exports for regular end-use verification. These standards shall be
published in the Federal Register and the initial standards shall be
published not later than October 1, 1988.
(8) Upon request of the Secretary of State, the Secretary of Defense
and the Secretary of the Treasury shall detail to the office primarily
responsible for export licensing functions under this section, on a
nonreimbursable basis, personnel with appropriate expertise to assist in
the initial screening of applications for export licenses under this
section in order to determine the need for further review of those
applications for foreign policy, national security, and law enforcement
concerns.
(9) For purposes of this subsection--
(A) the term ``foreign corporation'' means a corporation that is
not incorporated in the United States;
(B) the term ``foreign government'' includes any agency or
subdivision of a foreign government, including an official mission
of a foreign government;
(C) the term ``foreign person'' means any person who is not a
citizen or national of the United States or lawfully admitted to the
United States for permanent residence under the Immigration and
Nationality Act [8 U.S.C. 1101 et seq.], and includes foreign
corporations, international organizations, and foreign governments;
(D) the term ``party to the export'' means--
(i) the president, the chief executive officer, and other
senior officers of the license applicant;
(ii) the freight forwarders or designated exporting agent of
the license application; and
(iii) any consignee or end user of any item to be exported;
and
(E) the term ``person'' means a natural person as well as a
corporation, business association, partnership, society, trust, or
any other entity, organization, or group, including governmental
entities.
(h) Judicial review of designation of items as defense articles or
services
The designation by the President (or by an official to whom the
President's functions under subsection (a) of this section have been
duly delegated), in regulations issued under this section, of items as
defense articles or defense services for purposes of this section shall
not be subject to judicial review.
(i) Report to Department of State
As prescribed in regulations issued under this section, a United
States person to whom a license has been granted to export an item on
the United States Munitions List shall, not later than 15 days after the
item is exported, submit to the Department of State a report containing
all shipment information, including a description of the item and the
quantity, value, port of exit, and end-user and country of destination
of the item.
(j) Requirements relating to country exemptions for licensing of defense
items for export to foreign countries
(1) Requirement for bilateral agreement
(A) In general
The President may utilize the regulatory or other authority
pursuant to this chapter to exempt a foreign country from the
licensing requirements of this chapter with respect to exports
of defense items only if the United States Government has
concluded a binding bilateral agreement with the foreign
country. Such agreement shall--
(i) meet the requirements set forth in paragraph (2);
and
(ii) be implemented by the United States and the foreign
country in a manner that is legally-binding under their
domestic laws.
(B) Exception
The requirement to conclude a bilateral agreement in
accordance with subparagraph (A) shall not apply with respect to
an exemption for Canada from the licensing requirements of this
chapter for the export of defense items.
(2) Requirements of bilateral agreement
A bilateral agreement referred to \2\ paragraph (1)--
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\2\ So in original. Probably should be followed by ``in''.
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(A) shall, at a minimum, require the foreign country, as
necessary, to revise its policies and practices, and promulgate
or enact necessary modifications to its laws and regulations to
establish an export control regime that is at least comparable
to United States law, regulation, and policy requiring--
(i) conditions on the handling of all United States-
origin defense items exported to the foreign country,
including prior written United States Government approval
for any reexports to third countries;
(ii) end-use and retransfer control commitments,
including securing binding end-use and retransfer control
commitments from all end-users, including such documentation
as is needed in order to ensure compliance and enforcement,
with respect to such United States-origin defense items;
(iii) establishment of a procedure comparable to a
``watchlist'' (if such a watchlist does not exist) and full
cooperation with United States Government law enforcement
agencies to allow for sharing of export and import
documentation and background information on foreign
businesses and individuals employed by or otherwise
connected to those businesses; and
(iv) establishment of a list of controlled defense items
to ensure coverage of those items to be exported under the
exemption; and
(B) should, at a minimum, require the foreign country, as
necessary, to revise its policies and practices, and promulgate
or enact necessary modifications to its laws and regulations to
establish an export control regime that is at least comparable
to United States law, regulation, and policy regarding--
(i) controls on the export of tangible or intangible
technology, including via fax, phone, and electronic media;
(ii) appropriate controls on unclassified information
relating to defense items exported to foreign nationals;
(iii) controls on international arms trafficking and
brokering;
(iv) cooperation with United States Government agencies,
including intelligence agencies, to combat efforts by third
countries to acquire defense items, the export of which to
such countries would not be authorized pursuant to the
export control regimes of the foreign country and the United
States; and
(v) violations of export control laws, and penalties for
such violations.
(3) Advance certification
Not less than 30 days before authorizing an exemption for a
foreign country from the licensing requirements of this chapter for
the export of defense items, the President shall transmit to the
Committee on International Relations of the House of Representatives
and the Committee on Foreign Relations of the Senate a certification
that--
(A) the United States has entered into a bilateral agreement
with that foreign country satisfying all requirements set forth
in paragraph (2);
(B) the foreign country has promulgated or enacted all
necessary modifications to its laws and regulations to comply
with its obligations under the bilateral agreement with the
United States; and
(C) the appropriate congressional committees will continue
to receive notifications pursuant to the authorities,
procedures, and practices of section 2776 of this title for
defense exports to a foreign country to which that section would
apply and without regard to any form of defense export licensing
exemption otherwise available for that country.
(4) Definitions
In this section:
(A) Defense items
The term ``defense items'' means defense articles, defense
services, and related technical data.
(B) Appropriate congressional committees
The term ``appropriate congressional committees'' means--
(i) the Committee on International Relations and the
Committee on Appropriations of the House of Representatives;
and
(ii) the Committee on Foreign Relations and the
Committee on Appropriations of the Senate.