Anti-Terrorism and Arms Export Amendments Act of 1989

103 STAT. 1892 PUBLIC LAW 101-222–DEC. 12, 1989
Public Law 101-222
101st Congress
An Act
Dec. 12.1989
[H.R. 91]
Anti-Terrorism
and Arms
Export
Amendments
Act of 1989.
22 use 2151
note. To prohibit exports of military equipment to countries supporting international
terrorism, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the "Anti-Terrorism
and Arms Export Amendments Act of 1989".
(b) TABLE OF CONTENTS.—The table of contents for this Act is as
follows:
Sec. 1. Short title and table of contents.
Sec. 2. Prohibition on arms transactions with countries supporting terrorism.
Sec. 3. Considerations in issuance of arms export licenses and in arms sales.
Sec. 4. Exports to countries supporting terrorism.
Sec. 5. Prohibition on assistance to countries supporting international terrorism.
Sec. 6. Designation of items on the munitions list.
Sec. 7. Quarterly reports on third country transfers and on DOD transfers to other
agencies.
Sec. 8. Special authorities.
Sec. 9. Hostage Act.
Sec. 10. Self-defense in accordance with international law.
SEC. 2. PROHIBITION ON ARMS TRANSACTIONS WITH COUNTRIES
SUPPORTING TERRORISM.
(a) PROHIBITION.—Section 40 of the Arms Export Control Act (22
U.S.C. 2780) is amended to read as follows:
"SEC. 40. TRANSACTIONS WITH COUNTRIES SUPPORTING ACTS OF INTER­
NATIONAL TERRORISM.
"(a) PROHIBITED TRANSACTIONS BY THE UNITED STATES GOVERN­
MENT.—The following transactions by the United States Govern­
ment are prohibited:
"(1) Exporting or otherwise providing 0>y sale, lease or loan,
grant, or other means), directly or indirectly, anv munitions
item to a country described in subsection (d) under the authority
of this Act, the Foreign Assistance Act of 1961, or any other law
(except as provided in subsection (h)). In implementing this
paragraph, the United States Government—
"(A) shall suspend delivery to such country of any such
item pursuant to any such transaction which has not been
completed at the time the Secretary of State makes the
determination described in subsection (d), and
"(B) shall terminate any lease or loan to such country of
any such item which is in effect at the time the Secretary of
State makes that determination.
"(2) Providing credits, guarantees, or other financial assist­
ance under the authority of this Act, the Foreign Assistance Act
of 1961, or any other law (except as provided in subsection (h)),
with respect to the acquisition of any munitions item by a
country described in subsection (d). In implementing this para–*«*.*j%S«S^v-". *«'
PUBLIC LAW 101-222—DEC. 12, 1989 103 STAT. 1893
graph, the United States Grovernment shsill suspend expendi­
tures pursuant to any such assistance obligated before the
Secretary of State makes the determination described in subsec­
tion (d). The President may authorize expenditures otherwise
required to be suspended pursuant to the preceding sentence if
the President has determined, and reported to the Congress,
that suspension of those expenditures causes undue financial
hardship to a supplier, shipper, or similar person and allowing
the expenditure will not result in any munitions item being
made available for use by such country.
"(3) Consenting under section 3(a) of this Act, under section
505(a) of the Foreign Assistance Act of 1961, under the regula­
tions issued to carry out section 38 of this Act, or under any
other law (except as provided in subsection (h)), to any transfer
of any munitions item to a country described in subsection (d).
In implementing this parsigraph, the United States Government
shall withdraw any such consent which is in effect at the time
the Secretary of State makes the determination described in
subsection (d), except that this sentence does not apply with
respect to any item that has already been transferred to such
country.
"(4) Providing any license or other approval under section 38
of this Act for any export or other transfer (including by means
of a technical eissistance agreement, manufacturing licensing
agreement, or coproduction agreement) of any munitions item
to a country described in subsection (d). In implementing this
paragraph, the United States Government shall suspend any
such license or other approval which is in effect at the time the
Secretary of State makes the determination described in subsec­
tion (d), except that this sentence does not apply with respect to
any item that has already been exported or otherwise trans­
ferred to such country.
"(5) Otherwise facilitating the acquisition of any munitions
item by a country described in subsection (d). This paragraph
applies with respect to activities undertaken—
"(A) by any department, agency, or other instrumentality
of the Government,
"(B) by any officer or employee of the Government
(including members of the United States Armed Forces), or
"(C) by any other person at the request or on behalf of the
Government.
The Secretary of State may waive the requirements of the second
sentence of paragraph (1), the second sentence of paragraph (3), and
the second sentence of paragraph (4) to the extent that the Secretary
determines, after consultation with the Ck)ngress, that unusual and
compelling circumstances require that the United States Govern­
ment not take the actions specified in that sentence.
"(b) PROHIBITED TRANSACTIONS BY UNITED STATES PERSONS.—
"(1) IN GENERAL.—A United States person may not take any
of the following actions:
"(A) Exporting any munitions item to any country de­
scribed in subsection (d).
"(B) Selling, leasing, loaning, granting, or otherwise
providing any munitions item to any country described in
subsection (d).
"(C) Selling, leasing, loaning, granting, or otherwise
providing any munitions item to any recipient which is not 103 STAT. 1894 PUBLIC LAW 101-222—DEC. 12, 1989
Corporations.
President of U.I
Regulations.
Federal
Roister,
publication.
Reports. the government of or a person in a country described in
subsection (d) if the United States person has reason to
know that the munitions item will be made available to any
country described in subsection (d).
"(D) Taking any other action which would facilitate the
acquisition, directly or indirectly, of any munitions item by
the government of any country described in subsection (d),
or any person acting on behalf of that government, if the
United States person has reason to know that that action
will facilitate the acquisition of that item by such a govern­
ment or person.
"(2) LIABILITY FOR ACTIONS OF FOREIGN SUBSIDIARIES, ETC.—A
United States person violates this subsection if a corporation or
other person that is controlled in fact by that United States
person (as determined under regulations, which the President
shall issue) takes an action described in paragraph (1) outside
the United States.
"(3) APPUCABILITY TO ACTIONS OUTSIDE THE UNITED STATES.—
Paragraph (1) applies with respect to actions described in that
paragraph which are taken either within or outside the United
States by a United States person described in subsection (1X3)
(A) or (B). To the extent provided in regulations issued under
subsection (1X3XD), paragraph (1) applies with respect to actions
described in that paragraph which are taken outside the United
States by a person designated as a United States person in those
regulations.
"(c) TRANSFERS TO GOVERNMENTS AND PERSONS COVERED.—This
section applies with respect to—
"(1) the acquisition of munitions items by the government of a
country described in subsection (d); and
"(2) the acquisition of munitions items by any individual,
group, or other person within a country described in subsection
(d), except to the extent that subparagraph (D) of subsection
(b)(1) provides otherwise.
"(d) COUNTRIES COVERED BY PROHIBITION.—The prohibitions con­
tained in this section apply with respect to a country if the Sec­
retary of State determines that the government of that country has
repeatedly provided support for acts of international terrorism.
"(e) PUBUCATION OF DETERMINATIONS.—Each determination of the
Secretary of State under subsection (d) shall be published in the
Federal Register.
"(f) RESCISSION.—A determination made by the Secretary of State
under subsection (d) may not be rescinded unless the President
submits to the Speaker of the House of Representatives and the
chairman of the Committee on Foreign Relations of the Senate—
"(1) before the proposed rescission would take effect, a report
certifying that—
"(A) there has been a fundamental change in the leader­
ship and policies of the government of the country con­
cerned;
"(B) that government is not supporting acts of inter­
national terrorism; and
"(C) that government has provided assurances that it will
not support acts of international terrorism in the future; or
"(2) at least 45 days before the proposed rescission would take
effect, a report justifying the rescission and certifjdng that— PUBLIC LAW 101-222—DEC. 12, 1989 103 STAT. 1895
"(A) the government concerned has not provided any
support for international terrorism during the preceding 6-
month period; and
"(B) the government concerned has provided assurances
that it will not support acts of international terrorism in
the future.
"(g) WAIVER.—The President may waive the prohibitions con­
tained in this section with respect to a specific transaction if—
"(1) the President determines that the transaction is essential
to the national security interests of the United States; and
"(2) not less than 15 days prior to the proposed transaction,
the President—
"(A) consults with the Committee on Foreign Affairs of
the House of Representatives and the Committee on For­
eign Relations of the Senate; and
"(B) submits to the Speaker of the House of Representa­
tives and the chairman of the Committee on Foreign Rela­
tions of the Senate a report containing—
"(i) the name of any country involved in the proposed
transaction, the identity of any recipient of the items to
be provided pursuant to the proposed transaction, and
the anticipated use of those items;
"(ii) a description of the munitions items involved in
the proposed transaction (including their market value)
and the actual sale price at each step in the transaction
(or if the items are transferred by other than sale, the
manner in which they will be provided);
"(iii) the reasons why the proposed transaction is
essential to the national security interests of the
United States and the justification for such proposed
transaction;
"(iv) the date on which the proposed transaction is
expected to occur; and
(v) the name of every United States Government
department, agency, or other entity involved in the
proposed transaction, every foreign government in­
volved in the proposed transaction, and every private
party with significant participation in the proposed
transaction.
To the extent possible, the information specified in subparagraph (B)
of paragraph (2) shall be provided in unclassified form, with any
classified information provided in an addendum to the report.
"(h) EXEMPTION FOR TRANSACTIONS SUBJECT TO NATIONAL SECU­
RITY ACT REPORTING REQUIREMENTS.—The prohibitions contained in
this section do not apply with respect to any transaction subject to
reporting requirements under title V of the National Security Act of
1947 (50 U.S.C. 413 et seq.; relating to congressional oversight of
intelligence activities).
"(i) RELATION TO OTHER LAWS.—
"(1) IN GENERAL.—With regard to munitions items controlled
pursuant to this Act, the provisions of this section shall apply
notwithstanding any other provision of law, other than section
614(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2364(a)).
"(2) SECTION 614(a) WAIVER AUTHORITY.—If the authority of
section 614(a) of the Foreign Assistance Act of 1961 is used to
permit a transaction under that Act or the Arms Export Control
Act which is otherwise prohibited by this section, the written Reports.
Public
information.
Classified
information. 103 STAT. 1896 PUBLIC LAW 101-222—DEC. 12, 1989
policy justification required by that section shall include the
information specified in subsection (gX2XB) of this section.
"(j) CRIMINAL PENALTY.—Any person who willfully violates this
section shall be fined for each violation not more than $1,000,000,
imprisoned not more than 10 years, or both.
"(k) CIVIL PENALTIES; ENFORCEMENT.—In the enforcement of this
section, the President is authorized to exercise the same powers
concerning violations and enforcement which are conferred upon
departments, agencies, and officials by sections 11(c), 11(e), 11(g), and
12(a) of the Export Administration Act of 1979 (subject to the same
terms and conditions as are applicable to such powers under that
Act), except that, notwithstanding section 11(c) of that Act, the civil
penalty for each violation of this section may not exceed $500,000.
"(1) DEFINITIONS.—As used in this section—
"(1) the term 'munitions item' means any item enumerated on
the United States Munitions list (without regard to whether the
item is imported into or exported from the United States);
"(2) the term 'United States', when used geographically,
means the several States, the District of Columbia, the
(Dommonwealth of Puerto Rico, the Commonwealth of the
Northern Mariana Islands, and any territory or possession of
the United States; and
"(3) the term 'United States person' means—
"(A) any citizen or permanent resident alien of the
United States;
"(B) any sole proprietorship, partnership, company,
association, or corporation having its principal place of
business within the United States or organized under the
laws of the United States, any State, the District of Colum­
bia, the Commonwealth of Puerto Rico, the Commonwealth
of the Northern Mariana Islands, or any territory or posses­
sion of the United States;
"(C) any other person with respect to that person's
actions while in the United States; and
"(D) to the extent provided in regulations issued by the
Secretary of State, any person that is not described in
subparagraph (A), (B), or (C) but—
"(i) is a foreign subsidiary or affiliate of a United
States person described in subparagraph (B) and is
controlled in fact by that United States person (as
determined in accordance with those regulations), or
"(ii) is otherwise subject to the jurisdiction of the
United States,
with respect to that person's actions while outside the
United States.",
(b) CONFORMING AMENDMENT.—Section 3(f) of the Arms Export
Control Act (22 U.S.C. 2753(f)) is repealed.
SEC. 3. CONSIDERATIONS IN ISSUANCE OF ARMS EXPORT LICENSES AND
IN ARMS SALES.
(a) EXPORT LICENSES.—Section 38(aX2) of the Arms Export Control
Act (22 U.S.C. 2778) is amended by inserting "support international
terrorism," after "arms race,".
(b) ARMS SALES.—Section 36(bXlXD) of that Act (22 U.S.C.
2776(bXlXD)) is amended—
(1) by redesignating clauses (ii) through (iv) as clauses (iii)
through (v), respectively; and PUBLIC LAW 101-222—DEC. 12, 1989 103 STAT. 1897
(2) by inserting the following new clause (ii) after clause (i):
"(ii) support international terrorism;".
SEC. 4. EXPORTS TO COUNTRIES SUPPORTING TERRORISM.
Section 6(j) of the Export Administration Act of 1979 (50 U.S.C.
App 2405(j)) is amended to read as follows:
"0') COUNTRIES SUPPORTING INTERNATIONAL TERRORISM.—(1) A
validated license shall be required for the export of goods or tech­
nology to a country if the Secretary of State has made the following
determinations:
"(A) The government of such country has repeatedly provided
support for acts of international terrorism.
"(B) The export of such goods or technology could make a
significant contribution to the military potential of such coun­
try, including its military logistics capability, or could enhance
the ability of such country to support acts of international
terrorism.
"(2) The Secretary and the Secretary of State shall notify the
Committee on Foreign Affairs of the House of Representatives and
the Committee on Banking, Housing, and Urban Affairs and the
Committee on Foreign Relations of the Senate at least 30 days
before issuing any validated license required by paragraph (1).
"(3) Each determination of the Secretary of State under para­
graph (1)(A), including each determination in effect on the date of
the enactment of the Antiterrorism and Arms Export Amendments
Act of 1989, shall be published in the Federal Register.
"(4) A determination made by the Secretary of State under para­
graph (1)(A) may not be rescinded unless the President submits to
the Speaker of the House of Representatives and the chairman of
the (Jommittee on Banking, Housing, and Urban Affairs and the
chairman of the Committee on Foreign Relations of the Senate—
"(A) before the proposed rescission would take effect, a report
certifying that—
"(i) there has been a fundamental change in the leader-
sliip and policies of the government of the country
concerned;
"(ii) that government is not supporting acts of inter­
national terrorism; and
"(iii) that government has provided assurances that it
will not support acts of international terrorism in the
future; or
"(B) at least 45 days before the proposed rescission would take
effect, a report justifying the rescission and certifying that—
"(i) the government concerned has not provided any sup­
port for international terrorism during the preceding 6-
month period; and
"(ii) the government concerned has provided assurances
that it will not support acts of international terrorism in
the future.".
SEC. 5. PROHIBITION ON ASSISTANCE TO COUNTRIES SUPPORTING INTER­
NATIONAL TERRORISM.
Section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371)
is amended to read as follows: Federal
Register,
publication.
President of U.S.
Reports. 103 STAT. 1898 PUBLIC LAW 101-222—DEC. 12, 1989
Federal
Register,
publication.
President of U.S.
Reports.
President of U.S.
Reports. "SEC. 620A. PROHIBITION ON ASSISTANCE TO GOVERNMENTS SUPPORT­
ING INTERNATIONAL TERRORISM.
"(a) PROHIBITION.—The United States shall not provide any assist­
ance under this Act, the Agricultural Trade Development and
Assistance Act of 1954, the Peace Corps Act, or the Export-Import
Bank Act of 1945 to any country if the Secretary of State determines
that the government of that country has repeatedly provided sup­
port for acts of international terrorism.
"(b) PUBLICATION OF DETERMINATIONS.—Each determination of the
Secretary of State under subsection (a), including each determina­
tion in effect on the date of the enactment of the Antiterrorism and
Arms Export Amendments Act of 1989, shall be published in the
Federal Register.
"(c) RESCISSION.—A determination made by the Secretary of State
under subsection (a) may not be rescinded unless the President
submits to the Speaker of the House of Representatives and the
chairman of the Committee on Foreign Relations of the Senate—
"(1) before the proposed rescission would take effect, a report
certifying that—
"(A) there has been a fundamental change in the leader­
ship and policies of the government of the country
concerned;
"(B) that government is not supporting acts of inter­
national terrorism; and
"(C) that government has provided assurances that it will
not support acts of international terrorism in the future; or
"(2) at least 45 days before the proposed rescission would take
effect, a report justifying the rescission and certifying that—
"(A) the government concerned has not provided any
support for international terrorism during the preceding 6-
month period; and
"(B) the government concerned has provided assurances
that it will not support acts of international terrorism in
the future.
"(d) WAIVER.—Assistance prohibited by subsection (a) may be
provided to a country described in that subsection if—
"(1) the President determines that national security interests
or humanitarian reasons justify a waiver of subsection (a),
except that humanitarian reasons may not be used to justify
assistance under part II of this Act (including chapter 4, chapter
6, and chapter 8), or the Export-Import Bank Act of 1945; and
"(2) at least 15 days before the waiver takes effect, the
President consults with the Committee on Foreign Affairs of the
House of Representatives and the Committee on Foreign Rela­
tions of the Senate regarding the proposed waiver EUid submits a
report to the Speaker of the House of Representatives and the
chairman of the Committee on Foreign Relations of the Senate
containing—
"(A) the name of the recipient country;
"(B) a description of the national security interests or
humanitarian reasons which require the waiver;
"(C) the type and amount of and the justification for the
assistance to be provided pursuant to the waiver; and
"(D) the period of time during which such waiver will be
effective. PUBLIC LAW 101-222—DEC. 12, 1989 103 STAT. 1899
The waiver authority granted in this subsection may not be used to
provide any assistance under the Foreign Assistance Act of 1961
which is also prohibited by section 40 of the Arms Export Control
Act.".
SEC. 6. DESIGNATION OF ITEMS ON THE MUNITIONS LIST.
Section 38 of the Arms Export Control Act (22 U.S.C. 2278) is 22 USC 2778.
amended by adding at the end the following:
"(h) The designation by the President (or by an official to whom
the President's functions under subsection (a) have been duly dele­
gated), 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.".
SEC. 7. QUARTERLY REPORTS ON THIRD COUNTRY TRANSFERS AND ON
DOD TRANSFERS TO OTHER AGENCIES.
(a) QUARTERLY REPORTS.—Section 36(a) of the Arms Export Con­
trol Act (22 U.S.C. 2776(a)) is amended—
(1) by striking out "and" at the end of paragraph (8);
(2) by striking out the period at the end of paragraph (9) and
inserting in lieu thereof a semicolon; and
(3) by inserting after paragraph (9) the following:
"(10) a listing of the consents to third-party transfers of
defense articles or defense services which were granted, during
the quarter for which such report is submitted, for purposes of
section 3(aX2) of this Act, the regulations issued under section
38 of this Act, or section 505(aXl)(B) of the Foreign Assistance
Act of 1961, if the value (in terms of original acquisition cost) of
the defense articles or defense services to be transferred is
$1,000,000 or more; and
"(11) a listing of all munitions items (as defined in section
40(1)(1)) which were sold, leased, or otherwise transferred by the
Department of Defense to any other department, agency, or
other entity of the United States Government during the quar­
ter for which such report is submitted (including the name of
the recipient Government entity and a discussion of what that
entity will do with those munitions items) if—
"(A) the value of the munitions items was $250,000 or
more; or
"(B) the value of all munitions items transferred to that
Government department, agency, or other entity during
that quarter was $250,000 or more;
excluding munitions items transferred (i) for disposition or use
solely within the United States, or (ii) for use in connection with
intelligence activities subject to reporting requirements under
title V of the National Security Act of 1947 (50 U.S.C. 413 et
seq.; relating to congressional oversight of intelligence
activities).".
(b) CLASSIFICATION OF REPORTS.—That section is amended in the
parenthetical clause in the text preceding paragraph (1) by inserting
", and any information provided under paragraph (11) of this subsec­
tion may also be provided in a classified addendum" after "(b)(1) of
this section".
SEC. 8. SPECIAL AUTHORITIES.
The second sentence of section 614(c) of the Foreign Assistance
Act of 1961 (22 U.S.C. 2364(c)) is amended to read as follows: "The President of U.S. 103 STAT. 1900 PUBLIC LAW 101-222—DEC. 12, 1989
President shall fully inform the chairman and ranking minority
member of the Committee on Foreign Affairs of the House of
Representatives and the chairman and ranking minority member of
the Committee on Foreign Relations of the Senate of each use of
funds under this subsection prior to the use of such funds.".
SEC. 9. HOSTAGE ACT.
Section 2001 of the Revised Statutes of the United States (22
U.S.C. 1732) is amended by inserting "and not otherwise prohibited
by law" after "acts of war".
22 use 2371 SEC. 10. SELF-DEFENSE IN ACCORDANCE WITH INTERNATIONAL LAW. note. The use by any government of armed force in the exercise of
individual or collective self-defense in accordance with applicable
international agreements and customary international law shall not
be considered an act of international terrorism for purposes of the
amendments made by this Act.
Approved December 12,1989.
LEGISLATIVE HISTORY—H.R. 91 (S. 347):
HOUSE REPORTS: No. 101-296 (Comm. on Foreign Affairs).
SENATE REPORTS: No. 101-173 accompanying S. 347 (Comm. on Foreign Relations).
CONGRESSIONAL RECORD, Vol. 135 (1989):
Oct. 23, considered and passed House.
Nov. 21, considered and passed Senate, amended. House concurred in Senate
amendments.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 25 (1989):
Dec. 12, Presidential statement.