22 U.S.C. § 2321h
No defense article in the inventory of the Department of Defense which is set aside, reserved, or in any way earmarked or intended for future use by any foreign country may be made available to or for use by any foreign country unless such transfer is authorized under this chapter or the Arms Export Control Act [22 U.S.C. 2751 et seq.] or any subsequent corresponding legislation, and the value of such transfer is charged against funds authorized under such legislation or against the limitations specified in such legislation, as appropriate, for the fiscal period in which such defense article is transferred. For purposes of this subsection, "value" means the acquisition cost plus crating, packing, handling, and transportation costs incurred in carrying out this section.
Except as provided in paragraph (2), no stockpile of defense articles may be located outside the boundaries of a United States military base or a military base used primarily by the United States.
Paragraph (1) shall not apply with respect to stockpiles of defense articles located in the Republic of Korea, Thailand, Taiwan, any country that is a member of the North Atlantic Treaty Organization, any country that is a major non-NATO ally, or any other country the President may designate. At least 15 days before designating a country pursuant to the last clause of the preceding sentence, the President shall notify the congressional committees specified in section 2394-1(a) of this title in accordance with the procedures applicable to reprogramming notifications under that section.
No defense article transferred from any stockpile which is made available to or for use by any foreign country may be considered an excess defense article for the purpose of determining the value thereof.
22 U.S.C. § 2321h
EDITORIAL NOTES
REFERENCES IN TEXTThis 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.The Arms Export Control Act, referred to in subsec. (a), is Pub. L. 90-629, Oct. 22, 1968, 82 Stat. 1320, which is classified principally to chapter 39 (§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.
CODIFICATIONAmendment by Pub. L. 98-473 is based on section 116(a) of H.R. 5119, Ninety-eighth Congress, as passed by the House of Representatives May 10, 1984, which was enacted into permanent law by Pub. L. 98-473.
AMENDMENTS2024-Subsec. (b)(2)(A). Pub. L. 118-47 substituted "2025 and 2026" for "or 2025".2022-Subsec. (b)(2)(A). Pub. L. 117-263, §5503(a), substituted "$500,000,000 for any of the fiscal years 2023, 2024, or 2025." for "$200,000,000 for each of fiscal years 2021, 2022, 2023, 2024, and 2025." Pub. L. 117-103 substituted "2023, 2024, and 2025" for "and 2023".Subsec. (c)(2). Pub. L. 117-263, §5503(c)(1), inserted "Taiwan," after "Thailand,". 2021-Subsec. (b)(2)(A). Pub. L. 116-283 which directed substitution of "2021, 2022, 2023, 2024, and 2025" for "2013, 2014, 2015, 2016, 2017, 2018, 2019, and 2020", could not be executed because of the intervening amendments by Pub. L. 116-260 and Pub. L. 116-94. See 2020 and 2019 Amendment notes below.2020-Subsec. (b)(2)(A). Pub. L. 116-260 substituted "2021, 2022, and 2023" for "and 2021". 2019-Subsec. (b)(2)(A). Pub. L. 116-94 substituted "2020, and 2021" for "and 2020". Pub. L. 116-6 substituted "2019, and 2020" for "and 2019".2018-Subsec. (b)(2)(A). Pub. L. 115-141 substituted "2018, and 2019" for "and 2018".2017-Subsec. (b)(2)(A). Pub. L. 115-31 substituted "2017, and 2018" for "and 2017". 2015-Subsec. (b)(2)(A). Pub. L. 114-113 substituted "2015, 2016, and 2017" for "and 2015". 2014-Subsec. (b)(2)(A). Pub. L. 113-296 substituted ",2014, and 2015" for "and 2014". 2012-Subsec. (b)(2)(A). Pub. L. 112-150 substituted "fiscal years 2013 and 2014" for "fiscal years 2011 and 2012". 2010-Subsec. (b)(2)(A). Pub. L. 111-266 substituted "fiscal years 2011 and 2012" for "fiscal years 2007 and 2008". 2007-Subsec. (b)(2)(A). Pub. L. 109-472, §13(a)(2)(A), substituted "$200,000,000" for "$100,000,000" and "2007 and 2008" for "2004 and 2005".Subsec. (b)(2)(B). Pub. L. 109-472, §13(a)(2)(B), substituted "$200,000,000" for "$100,000,000". 2004-Subsec. (b)(2)(A). Pub. L. 108-287, §12002(1), substituted "for each of fiscal years 2004 and 2005" for "for fiscal year 2003".Subsec. (b)(2)(B). Pub. L. 108-287, §12002(2), substituted "for a fiscal year" for "for fiscal year 2003". 2002-Subsec. (b)(2). Pub. L. 107-228 amended par. (2) generally. Prior to amendment, par. (2) read as follows: "(2)(A) The value of such additions to stockpiles of defense articles in foreign countries shall not exceed $50,000,000 for fiscal year 2001."(B) Of the amount specified in subparagraph (A), not more than $50,000,000 may be made available for stockpiles in the Republic of Korea." 2000-Subsec. (b)(2). Pub. L. 106-280 amended par. (2) generally. Prior to amendment, par. (2) read as follows: "(2)(A) The value of such additions to stockpiles of defense articles in foreign countries shall not exceed $60,000,000 for fiscal year 2000."(B) Of the amount specified in subparagraph (A), not more than $40,000,000 may be made available for stockpiles in the Republic of Korea and not more than $20,000,000 may be made available for stockpiles in Thailand."1999-Subsec. (b)(2). Pub. L. 106-113, §1000(a)(7) [title XII, §1231], amended par. (2) generally. Prior to amendment, par. (2) read as follows:"(A) The value of such additions to stockpiles of defense articles in foreign countries shall not exceed $340,000,000 for fiscal year 1999 and $60,000,000 for fiscal year 2000."(B) Of the amount specified in subparagraph (A) for fiscal year 1999, not more than $320,000,000 may be made available for stockpiles in the Republic of Korea and not more than $20,000,000 may be made available for stockpiles in Thailand. Of the amount specified in subparagraph (A) for fiscal year 2000, not more than $40,000,000 may be made available for stockpiles in the Republic of Korea and not more than $20,000,000 may be made available for stockpiles in Thailand."Subsec. (b)(2)(A). Pub. L. 106-113, §1000(a)(2) [title V, §584(a)], inserted "and $60,000,000 for fiscal year 2000" before period at end and directed the striking of "$50,000,000 for each of the fiscal years 1996 and 1997, $60,000,000 for fiscal year 1998, and", which was executed by striking after "shall not exceed" text which did not include a comma after "1998" to reflect the probable intent of Congress.Subsec. (b)(2)(B). Pub. L. 106-113, §1000(a)(2) [title V, §584(b)], struck out "Of the amount specified in subparagraph (A) for each of the fiscal years 1996 and 1997, not more than $40,000,000 may be made available for stockpiles in the Republic of Korea and not more than $10,000,000 may be made available for stockpiles in Thailand. Of the amount specified in subparagraph (A) for fiscal year 1998, not more than $40,000,000 may be made available for stockpiles in the Republic of Korea and not more than $20,000,000 may be made available for stockpiles in Thailand. Of the amount specified in subparagraph (A) for fiscal year 1999, not more than $320,000,000 may be made available for stockpiles in the Republic of Korea and not more than $20,000,000 may be made available for stockpiles in Thailand." after "(B)" and inserted at end "Of the amount specified in subparagraph (A) for fiscal year 2000, not more than $40,000,000 may be made available for stockpiles in the Republic of Korea and not more than $20,000,000 may be made available for stockpiles in Thailand." 1998-Subsec. (b)(2)(A). Pub. L. 105-277, §101(d) [title V, §571(a)], substituted a comma for "and" after "1997" and inserted "and $340,000,000 for fiscal year 1999" before period at end.Subsec. (b)(2)(B). Pub. L. 105-277, §101(d) [title V, §571(b)], inserted at end "Of the amount specified in subparagraph (A) for fiscal year 1999, not more than $320,000,000 may be made available for stockpiles in the Republic of Korea and not more than $20,000,000 may be made available for stockpiles in Thailand." 1997-Subsec. (b)(2)(A). Pub. L. 105-118, §575(a), inserted "and $60,000,000 for fiscal year 1998" before period at end. Subsec. (b)(2)(B). Pub. L. 105-118, §575(b), inserted at end "Of the amount specified in subparagraph (A) for fiscal year 1998, not more than $40,000,000 may be made available for stockpiles in the Republic of Korea and not more than $20,000,000 may be made available for stockpiles in Thailand."1996-Subsec. (b)(1). Pub. L. 104-107, §531B(a), inserted "or in the implementation of agreements with Israel" after "North Atlantic Treaty Organization".Subsec. (b)(2). Pub. L. 104-107, §531B(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "The value of such additions to stockpiles in foreign countries shall not exceed a total of $200,000,000 for stockpiles in Israel for fiscal years 1994 and 1995, up to $40,000,000 may be made available for stockpiles in the Republic of Korea, and up to $10,000,000 may be made available for stockpiles in Thailand for fiscal year 1995, up to $72,000,000 may be made available for stockpiles in the Republic of Korea, and up to $20,000,000 may be made available for stockpiles in Thailand." Subsec. (c). Pub. L. 104-107, §531B(c), inserted heading and amended text generally. Prior to amendment, text read as follows: "Except for stockpiles in existence on June 30, 1976 and for stockpiles located in the Republic of Korea, Thailand, or countries which are members of the North Atlantic Treaty Organization, or major non-NATO allies, no stockpile may be located outside the boundaries of a United States military base or a military base used primarily by the United States." 1994-Subsec. (b)(2). Pub. L. 103-306 substituted "a total of $200,000,000 for stockpiles in Israel for fiscal years 1994 and 1995, up to $40,000,000 may be made available for stockpiles in the Republic of Korea, and up to $10,000,000 may be made available for stockpiles in Thailand for fiscal year 1995" for "$200,000,000 for stockpiles in Israel for fiscal year 1994".1993-Subsec. (b)(2). Pub. L. 103-87 which directed amendment of par. (2) "by striking out '$389,000,000 for fiscal year 1993, of which amount not less than $200,000,000 shall be available for stockpiles in Israel, and up to $189,000,000 may be available for stockpiles in the Republic of Korea' and inserting in lieu thereof '$200,000,000 for stockpiles in Israel for fiscal year 1994', up to $72,000,000 may be made available for stockpiles in the Republic of Korea, and up to $20,000,000 may be made available for stockpiles in Thailand." was executed as if the end quotation mark for the inserted material followed "Thailand" rather than following "1994" to reflect the probable intent of Congress. 1992-Subsec. (b)(2). Pub. L. 102-391 which directed the substitution of "$389,000,000 for fiscal year 1993, of which amount not less than $200,000,000 shall be available for stockpiles in Israel, and up to $189,000,000 may be available for stockpiles in the Republic of Korea" for "$378,000,000 for fiscal year 1991, of which amount not less than $300,000,000 shall be available for stockpiles in Israel", was executed by making such substitution for "$378,000,000 for fiscal year 1991, of which amount not less than $300,000,000 shall be for stockpiles in Israel", to reflect the probable intent of Congress.1990-Subsec. (b)(2). Pub. L. 101-513, §573(b), substituted "$378,000,000 for fiscal year 1991, of which amount not less than $300,000,000 shall be for stockpiles in Israel" for "$165,000,000 for fiscal year 1990".Subsec. (c). Pub. L. 101-513, §573(a), inserted "or major non-NATO allies," after "Organization,".Subsec. (e). Pub. L. 101-510 struck out subsec. (e) which read as follows: "The President shall promptly report to the Congress each new stockpile, or addition to an existing stockpile, described in this section of defense articles valued in excess of $10,000,000 in any fiscal year."1989-Subsec. (b)(1). Pub. L. 101-167, §587(b)(1), substituted "an amount that is specified" for "an amount greater than is specified".Subsec. (b)(2). Pub. L. 101-167, §587(b)(2), substituted "$165,000,000 for fiscal year 1990" for "$77,000,000 for fiscal year 1989".1988-Subsec. (b)(2). Pub. L. 100-461 amended par. (2) generally, substituting "$77,000,000 for fiscal year 1989" for "$116,000,000 for fiscal year 1988". 1987-Subsec. (b)(2). Pub. L. 100-202 amended par. (2) generally, substituting "$116,000,000 for fiscal year 1988" for "$360,000,000 for fiscal year 1986 and shall not exceed $125,000,000 for fiscal year 1987".Subsec. (c). Pub. L. 100-202 inserted ",Thailand," after "Korea".1985-Subsec. (b)(2). Pub. L. 99-83 amended par. (2) generally, substituting provisions authorizing appropriations of not to exceed $360,000,000 for fiscal year 1986 and $125,000,000 for fiscal year 1987, for provisions authorizing appropriations of $125,000,000 for fiscal year 1984 and $248,000,000 for fiscal year 1985.1984-Subsec. (b)(2). Pub. L. 98-473 substituted "$125,000,000 for the fiscal year 1984 and $248,000,000 for the fiscal year 1985" for "$130,000,000 for the fiscal year 1982 and $125,000,000 for the fiscal year 1983".1981-Subsec. (b)(2). Pub. L. 97-113 substituted "$130,000,000 for the fiscal year 1982 and $125,000,000 for the fiscal year 1983" for "$85,000,000 for the fiscal year 1981".1980-Subsec. (b)(2). Pub. L. 96-533 substituted "$85,000,000 for the fiscal year 1981" for "$95,000,000 for the fiscal year 1980".1979-Subsec. (b)(2). Pub. L. 96-92, §6(a)(1), substituted "$95,000,000 for the fiscal year 1980" for "$90,000,000 for the fiscal year 1979".Subsec. (c). Pub. L. 96-92, §6(a)(2), inserted reference to stockpiles in Republic of Korea.1978-Subsec. (b)(2). Pub. L. 95-384 substituted "$90,000,000 for the fiscal year 1979" for "$270,000,000 for the fiscal year 1978".1977-Subsec. (b)(2). Pub. L. 95-92 substituted "$270,000,000 for the fiscal year 1978" for "$93,750,000 for the period beginning July 1, 1975, and ending September 30, 1976, and $125,000,000 for the fiscal year 1977". 1976-Subsec. (a). Pub. L. 93-329 substituted provisions prohibiting the transfer of any defense article earmarked for foreign use unless such transfer is authorized under this chapter or the Arms Export Control Act or subsequent legislation, requiring the charge-off of such transfer against funds authorized under such legislation, and defining "value", for provisions that no funds, other than funds made available under this part or section 401(a) of Pub. L. 89-367 (80 Stat. 37) be obligated for purposes of stockpiling any defense article or war reserve material if such article is earmarked for future foreign use.Subsec. (b). Pub. L. 94-329 substituted provisions limiting the value of earmarked defense articles for allied or foreign use to an amount not greater than is specified in security assistance legislation for that fiscal year and limiting the value of additions to stockpiles in foreign countries not to exceed $93,750,000 for the period beginning July 1, 1975 and ending Sept. 30, 1976, and $125,000,000 for fiscal 1977 for provisions specifying a charge-off of the cost of any such article earmarked for use by or on behalf of the country referred to in section 401(a)(1) of Pub. L. 89-367 (80 Stat. 37) against the limitations specified in such section or subsequent legislation and against funds authorized under this part.Subsecs. (c) to (e). Pub. L. 94-329 added subsecs. (c) to (e).
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 1985 AMENDMENT Amendment by Pub. L. 99-83 effective Oct. 1, 1985, see section 1301 of Pub. L. 99-83 set out as a note under section 2151-1 of this title.
EFFECTIVE DATE OF 1984 AMENDMENT Section 116(b) of H.R. 5119, as passed by the House of Representatives May 10, 1984, and enacted into permanent law by Pub. L. 98-473, title I, §101(1) [title V, §541(a)], Oct. 12, 1984, 98 Stat. 1884, 1903, provided that: "The amendment made by subsection (a) [amending this section] shall take effect on the date of enactment of this Act [Oct. 12, 1984]."
RULES GOVERNING TRANSFER OF DEFENSE ARTICLES TO ISRAEL Pub. L. 118-31, div. A, title XII, §12571257,, 137 Stat. 472, provided that:"(a) IN GENERAL.-Notwithstanding section 514(b) of the Foreign Assistance Act of 1961 (22 U.S.C. 2321h(b)), and subject to subsections (b) and (c) of this section, the President, acting through the Secretary of Defense, may transfer to Israel one or more retired United States aerial refueling tankers, any United States aerial refueling tanker that the Secretary of Defense plans to retire during the two-year period beginning on the date of the enactment of this Act [Dec. 22, 2023], or any other United States aerial refueling tanker the President considers appropriate, consistent with-"(1) all other requirements set forth in the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.); and"(2) the requirements set forth in the Arms Export Control Act (22 U.S.C. 2751 et seq.)."(b) CONDITIONS.-Except in the case of an emergency, as determined by the President, a transfer under subsection (a) may only occur if the transfer-"(1) does not affect the ability of the United States to maintain a sufficient aerial refueling capacity to satisfy United States warfighting requirements; "(2) does not harm the combat readiness of the United States;"(3) does not affect the ability of the United States to meet its commitments to allies with respect to the transfer of aerial refueling capacity; and"(4) is in the national security interest of the United States."(c) CERTIFICATION.- "(1) IN GENERAL.-Except in the case of an emergency, as determined by the President, not later than 15 days before making a transfer under subsection (a), the Secretary of Defense shall certify to the appropriate congressional committees that the transfer meets the conditions specified in subsection (b)."(2) EMERGENCIES.-In the case of an emergency, as determined by the President, not later than five days after making a transfer under subsection (a), the President shall-"(A) certify to the appropriate congressional committees that the transfer supports the national security interests of the United States; and"(B) provide to the appropriate congressional committees an assessment of the impacts, risks, and mitigation measures with respect to the matters referred to in paragraphs (1) through (4) of subsection (b)."(d) APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.-In this section, the term 'appropriate congressional committees' means-"(1) the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives; and"(2) the Committee on Armed Services and the Committee on Foreign Relations of the Senate." Pub. L. 116-283, div. A, title XII, §12751275,, 134 Stat. 3979, as amended by Pub. L. 118-31, div. A, title XII, §1255(a)(2), (d) (2), Dec. 22, 2023, 137 Stat. 468, 470, provided that:"(a) IN GENERAL.-Notwithstanding section 514(b) of the Foreign Assistance Act of 1961 (22 U.S.C. 2321h(b)), and subject to subsections (b) and (c) of this section, the President, acting through the Secretary of Defense and with the concurrence of the Secretary of State, is authorized to transfer to Israel precision-guided munitions from reserve stocks, including the War Reserve Stockpile for Allies-Israel, consistent with-"(1) all other requirements set forth in the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.); and"(2) the requirements set forth in the Arms Export Control Act (22 U.S.C. 2751 et seq.)."(b) CONDITIONS.-Except in the case of an emergency, as determined by the President, a transfer under subsection (a) of this section may only occur if the transfer- "(1) does not affect the ability of the United States to maintain a sufficient supply of precision-guided munitions to satisfy United States warfighting requirements;"(2) does not harm the combat readiness of the United States;"(3) does not affect the ability of the United States to meet its commitments to allies with respect to the transfer of precision-guided munitions; and"(4) is in the national security interest of the United States."(c) CERTIFICATION.-"(1) IN GENERAL.-Except in the case of an emergency, as determined by the President, not later than 15 days before making a transfer under subsection (a) of this section, the Secretary of Defense, with the concurrence of the Secretary of State, shall certify to the appropriate congressional committees that the transfer meets the conditions specified in subsection (b) of this section."(2) EMERGENCIES.-In the case of an emergency, as determined by the President, not later than 5 days after making a transfer under subsection (a) of this section, the President shall-"(A) certify to the appropriate congressional committees that the transfer supports the national security interests of the United States; and"(B) provide to the appropriate committees of Congress an assessment of the impacts, risks, and mitigation measures with respect to the matters referred to in paragraphs (1) through (4) of subsection (b) of this section."[(d) Repealed. Pub. L. 118-31, div. A, title XII, §1255(d)(2), Dec. 22, 2023, 137 Stat. 470.] "(e) TERMINATION.-The authority of the President to transfer precision-guided munitions under this section shall terminate on January 1, 2027."
FISCAL YEAR 1992 ADDITIONS TO STOCKPILES IN ISRAEL Pub. L. 102-145, §118, as added by Pub. L. 102-266, §102, Apr. 1, 1992, 106 Stat. 93, provided in part that the authority and conditions provided in section 571 of H.R. 2621, One Hundred Second Congress, 1st Session, as passed by the House on June 19, 1991, shall be applicable to funds appropriated by Pub. L. 102-145 (and are hereby enacted) in lieu of the authority and conditions provided in section 573 of Pub. L. 101-513 [amending this section]. Section 571 of H.R. 2621, as referred to above, provided that: "Notwithstanding section 514(b) of the Foreign Assistance Act of 1961 [subsec. (b) of this section], additions may be made to stockpiles in Israel during fiscal year 1992 having a value of $300,000,000: Provided, That the word 'value' as used in this section shall have the same meaning as in section 514 of the Foreign Assistance Act of 1961 [this section]."
REPUBLIC OF KOREA STOCKPILING AUTHORITIES; REPORT TO CONGRESS Pub. L. 96-92, §6(b), Oct. 29, 1979, 93 Stat. 703, directed President to transmit to Congress, not later than Dec. 31, 1979, a report regarding stockpiling authorities for Republic of Korea, prior to repeal by Pub. L. 97-113, title VII, §734(a) (11), Dec. 29, 1981, 95 Stat. 1560.
APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED Pub. L. 116-283, div. A, title XII, §1280B, Jan. 1, 2021, 134 Stat. 3985, provided that: "In this subtitle [subtitle H (§§1271-1280B) of title XII of div. A of Pub. L. 116-283 see Short Title of 2021 Amendment note set out under section 2151 of this title], the term 'appropriate congressional committees' means-"(1) the Committee on Foreign Relations and the Committee on Armed Services of the Senate; and"(2) the Committee on Foreign Affairs and the Committee on Armed Services of the House of Representatives."
EXECUTIVE DOCUMENTS
DELEGATION OF FUNCTIONSFor 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.
- Major non-NATO ally
- "Major non-NATO ally" means a country which is designated in accordance with section 2321k of this title as a major non-NATO ally for purposes of this chapter and the Arms Export Control Act (22 U.S.C. 2751 et seq.).