How the terrorism ban binds the government

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1. A ban written into the arms law

Section 40 of the Arms Export Control Act, codified at 22 U.S.C. 2780, bars five kinds of government transaction with a country covered by the section (22 U.S.C. 2780(a)). A country is covered once the Secretary of State determines that its government has repeatedly provided support for acts of international terrorism (22 U.S.C. 2780(d)). Each such determination must be published in the Federal Register (22 U.S.C. 2780(e)). The ban reaches both the covered government and any individual, group or other person within the country, except where the rule for private facilitation provides otherwise (22 U.S.C. 2780(c)).

The statute widens what counts as support (22 U.S.C. 2780(d)). Support includes any activity the Secretary decides willfully aids or abets the international spread of nuclear explosive devices to individuals or groups. It also includes willfully aiding or abetting individuals or groups in acquiring unsafeguarded special nuclear material, or in efforts to use, develop, produce, stockpile or otherwise acquire chemical, biological or radiological weapons.

2. What the government may not do

The first bar is on exporting or otherwise providing any munitions item to a covered country, by sale, lease, loan, grant or other means, directly or indirectly (22 U.S.C. 2780(a)(1)). It applies whether the authority is the Arms Export Control Act, the Foreign Assistance Act of 1961 or any other law. A munitions item means any item on the Munitions List, whether or not it is imported into or exported from the United States (22 U.S.C. 2780(l)(1)).

The second bar is on credits, guarantees or other financial help for a covered country to acquire a munitions item (22 U.S.C. 2780(a)(2)). The third is on consenting to any transfer of a munitions item to a covered country, whether under the sales statute, the grant assistance statute, the export regulations or any other law (22 U.S.C. 2780(a)(3)). The fourth is on any export license or other approval for such a transfer, including through a technical assistance, manufacturing license or coproduction agreement (22 U.S.C. 2780(a)(4)).

The fifth bar is a catch-all on otherwise facilitating a covered country’s acquisition of a munitions item (22 U.S.C. 2780(a)(5)). It covers any government department, agency or other instrumentality, and any officer or employee, including members of the armed forces. It also covers any other person acting at the request or on behalf of the government. Third-party transfer consent is covered in third party transfer and retransfer consent.

3. What happens to deals already in motion

Determinations also reach transactions already under way (22 U.S.C. 2780(a)(1)). For deliveries, the government must suspend delivery of any item under a transaction not completed when the determination is made (22 U.S.C. 2780(a)(1)(A)). It must also end any lease or loan of a munitions item to that country then in effect (22 U.S.C. 2780(a)(1)(B)).

For financing, expenditures under assistance obligated before the determination must be suspended (22 U.S.C. 2780(a)(2)). The President may still allow those expenditures after deciding, and reporting to Congress, that suspension causes undue financial hardship to a supplier, shipper or similar person. The expenditure must also not result in any munitions item becoming available for the country’s use.

For consents and licenses, the government must withdraw any transfer consent in effect, and suspend any license or approval in effect, when the determination is made (22 U.S.C. 2780(a)(3) and 22 U.S.C. 2780(a)(4)). Neither rule applies to items already transferred or exported. The Secretary of State may waive the delivery and lease, consent and license unwinding rules, though not the financing suspension, after consulting Congress, if unusual and compelling circumstances require it (22 U.S.C. 2780(a)).

4. How a determination is rescinded

A determination may not be rescinded unless the President reports to the Speaker of the House, the House Committee on Foreign Affairs and the chairman of the Senate Committee on Foreign Relations (22 U.S.C. 2780(f)(1)). Two routes exist. On the first, the report must come before the rescission takes effect (22 U.S.C. 2780(f)(1)(A)). It must certify a fundamental change in the leadership and policies of the government concerned. It must also certify that the government is not supporting acts of international terrorism and has given assurances that it will not do so in future.

On the second route, the report must come at least 45 days before the rescission takes effect, and must justify the rescission (22 U.S.C. 2780(f)(1)(B)). It must certify that the government has given no support for international terrorism in the preceding six months, and has given assurances about the future. Congress may block a rescission on this route by enacting a joint resolution within 45 days of receiving the report (22 U.S.C. 2780(f)(2)(A)). Such a resolution is considered under paragraphs (3) through (7) of section 8066(c) of the Department of Defense Appropriations Act contained in Public Law 98-473 (22 U.S.C. 2780(f)(2)(B)).

5. Intelligence activities and other laws

The prohibitions do not apply to transactions subject to the intelligence oversight reporting rules in title V of the National Security Act of 1947, which governs congressional oversight of intelligence activities (22 U.S.C. 2780(h)). For munitions items controlled under the Act, the section applies notwithstanding any other law, except the special waiver authority in section 614(a) of the Foreign Assistance Act, codified at 22 U.S.C. 2364(a) (22 U.S.C. 2780(i)(1)). If that authority is used to permit a transaction the section would otherwise bar, the written justification must include the same details a section 40 waiver report requires (22 U.S.C. 2780(i)(2)). Waivers and the private side of the ban are covered in the terrorism ban for companies and its waiver.

A separate provision bars sales and export licenses for any country the President certifies is not cooperating fully with American antiterrorism efforts (22 U.S.C. 2781(a)). That provision is covered in the terrorism ban for companies and its waiver.

Key terms

Munitions item	Any item on the Munitions List, whether or not it crosses the border.
Covered country	A country whose government the Secretary of State finds has repeatedly supported international terrorism.
Unwinding rules	The duties to suspend deliveries, end leases and withdraw consents and licenses.
Rescission	The lifting of a determination after a presidential report and certification.
Joint resolution	The means by which Congress may block a rescission within 45 days.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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