Drug country certification and withholding

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1. Two procedures in the statute

The narcotics control chapter of the Foreign Assistance Act contains two procedures that tie U.S. assistance to the drug control record of major producing and transit countries. The older one, in 22 U.S.C. 2291j, withholds part of the assistance until the President certifies the country. The newer one, in 22 U.S.C. 2291j-1, allows funds to flow from the start of the fiscal year if the President files a timely report and designations. For countries identified in that report, the older procedure does not apply during the fiscal year (22 U.S.C. 2291j-1(5)(A)). The President may still apply it to any major drug transit or major illicit drug producing country (22 U.S.C. 2291j-1(5)(B)).

2. The fifty percent withholding

The older procedure withholds fifty percent of the United States assistance allocated each fiscal year in the report required by section 2413 (22 U.S.C. 2291j(a)(1)). The withholding from obligation and expenditure applies to each major illicit drug producing country, major drug-transit country or listed methamphetamine precursor country (22 U.S.C. 2291j(a)(1)). The withholding does not apply if the President determines it would be contrary to the national interest of the United States. That determination does not take effect until at least 15 days after the President submits written notification to the appropriate congressional committees.

The Secretary of the Treasury also instructs the United States Executive Directors of six multilateral development banks (22 U.S.C. 2291j(a)(2)). On and after March 1 of each year, they vote against any loan or other use of the banks’ funds for such a country (22 U.S.C. 2291j(a)(2)). The banks are the International Bank for Reconstruction and Development, the International Development Association, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank and the European Bank for Reconstruction and Development.

3. Certification

The withholding and the voting requirement lift if the President determines and certifies to Congress, at the time of submission of the report required by section 2291h(a), one of two things (22 U.S.C. 2291j(b)(1)). The first is that during the previous year the country has cooperated fully with the United States, or has taken adequate steps on its own (22 U.S.C. 2291j(b)(1)(A)). The aim of those steps is full compliance with the goals of the United Nations Convention Against Illicit Traffic (22 U.S.C. 2291j(b)(1)(A)). The second, available only for a country that would not otherwise qualify, is that the vital national interests of the United States require the assistance (22 U.S.C. 2291j(b)(1)(B)).

A vital national interests certification must include a full and complete description of the vital national interests placed at risk if assistance is terminated (22 U.S.C. 2291j(b)(3)). It also weighs that risk against the risks to U.S. vital national interests from the country’s failure to cooperate fully or to take adequate steps on its own. A licit producer of opium may be certified on the cooperation ground only if it meets two conditions (22 U.S.C. 2291j(c)). It must maintain licit production and stockpiles at levels no higher than those consistent with licit market demand. It must also have taken adequate steps to prevent significant diversion into illicit markets and to prevent illicit cultivation and production (22 U.S.C. 2291j(c)).

4. Congressional disapproval and recertification

Congress may enact a joint resolution disapproving a certification within 30 calendar days after receipt (22 U.S.C. 2291j(d)). If no certification is made, or Congress disapproves, funds may not be obligated for United States assistance for that country, and funds previously obligated may not be expended (22 U.S.C. 2291j(e)(1)). The bank voting requirement then applies without regard to the March 1 date (22 U.S.C. 2291j(e)(2)).

A country can be recertified at the time of the next annual report, if Congress does not enact a joint resolution disapproving it (22 U.S.C. 2291j(f)(1)). At any other time, recertification on national interest grounds needs either a certified fundamental change in the country’s government or conditions, or a joint resolution approving the determination (22 U.S.C. 2291j(f)(2)). Not later than November 1 of each year, the President notifies the appropriate committees which countries are major drug-transit or major illicit drug producing countries (22 U.S.C. 2291j(h)).

5. The newer procedure

Under section 2291j-1, funds that would otherwise be withheld may be obligated or expended beginning October 1 of the fiscal year if its conditions are met (22 U.S.C. 2291j-1). Not later than September 15 of the previous fiscal year, the President must submit a report identifying each country determined to be a major drug transit country or major illicit drug producing country (22 U.S.C. 2291j-1(1)). In that report, the President designates each listed country that has failed demonstrably during the previous 12 months on its obligations (22 U.S.C. 2291j-1(2)(A)). The failure is one to make substantial efforts to meet its international counternarcotics obligations and take the measures the statute lists (22 U.S.C. 2291j-1(2)(A)). Further designations cover a lack of comparable scheduling procedures or of significant prosecution steps (22 U.S.C. 2291j-1(2)(B) and 22 U.S.C. 2291j-1(2)(C)). Each designation needs a justification (22 U.S.C. 2291j-1(2)(D)).

Some designated countries face a further condition (22 U.S.C. 2291j-1(3)). It applies to a country designated for failing demonstrably, or designated three times in a 5-year period on certain other grounds. Such a country may receive U.S. assistance in the next fiscal year only after a presidential determination is reported to the committees (22 U.S.C. 2291j-1(3)). The determination is that assistance is vital to the national interests of the United States, or that the country has made substantial efforts since being designated (22 U.S.C. 2291j-1(3)(A) and 22 U.S.C. 2291j-1(3)(B)). Democracy, anti-trafficking and global health assistance continue for eligible countries designated on the other grounds (22 U.S.C. 2291j-1(5)(C), 22 U.S.C. 2291j-1(5)(D) and 22 U.S.C. 2291j-1(5)(E)). The section does not affect the requirements of section 2291j for the methamphetamine precursor countries (22 U.S.C. 2291j-1(5)(F)).

6. Reallocating withheld funds

Some withheld funds are redirected (22 U.S.C. 2291e). Where a country loses funds under section 2291j or another law for failing to take adequate steps against drug production or trafficking, the President shall use them elsewhere. They go to additional assistance for countries that have met their illicit drug eradication targets or otherwise taken significant steps (22 U.S.C. 2291e). The funds may be transferred to the narcotics control part, but only to increase funding for activities previously justified to the Congress (22 U.S.C. 2291e(1)). Such transfers may be made without regard to the 20-percent increase limitation in section 2360(a), and the paragraph does not apply to Arms Export Control Act funds. Funds not used that way are reprogrammed within the account for which they were appropriated (22 U.S.C. 2291e(2)). The strategy report itself is covered in the International Narcotics Control Strategy Report.

Key terms

Withholding	Fifty percent of allocated U.S. assistance held back under section 2291j.
Certification	The presidential finding that releases withheld assistance.
Vital national interests	The alternative ground for certifying a country that does not fully cooperate.
Failed demonstrably	The designation standard under section 2291j-1.
November 1 list	The annual notice of major drug-transit and producing countries.

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