U.S. Arms Transfer Restrictions and AUKUS Cooperation (CRS Report for Congress)
| Release Date |
Revised Sept. 17, 2024 |
| Report Number |
IF12483 |
| Report Type |
In Focus |
| Authors |
Paul K. Kerr; Ilana Krill |
| Source Agency |
Congressional Research Service |
| Older Revisions |
-
Premium Revised Aug. 9, 2024 (3 pages, $24.95)
add
-
Premium Revised Jan. 4, 2024 (3 pages, $24.95)
add
-
Premium Revised Nov. 15, 2023 (3 pages, $24.95)
add
-
Premium Aug. 28, 2023 (2 pages, $24.95)
add
|
Summary:
On September 15, 2021, Australia, the United Kingdom
(UK), and the United States announced an “enhanced
trilateral security partnership,” named AUKUS after the
participating countries. The partnership consists of two
lines of effort, known as pillars: Pillar One is to provide
Australia with a nuclear-powered submarine capability.
Pillar Two is jointly to develop “advanced military
capabilities.”
U.S. participation in Pillar Two may require the transfer of
items or information via Foreign Military Sales (FMS), a
term that refers to the sale of U.S.-origin defense articles,
equipment, services, and training (hereinafter referred to as
“defense articles”) on a government-to-government basis.
Such participation may also require U.S. government-issued
export licenses for Direct Commercial Sales (DCS), a U.S.
program for registered U.S. firms to sell defense articles
directly to eligible foreign governments and international
organizations. U.S. participation in AUKUS Pillar One is
governed by different laws and regulations. (See CRS In
Focus IF11999, AUKUS Nuclear Cooperation, by Paul K.
Kerr and Mary Beth D. Nikitin, and CRS Report RL32418,
Navy Virginia-Class Submarine Program and AUKUS
Submarine (Pillar 1) Project: Background and Issues for
Congress, by Ronald O'Rourke.)
The FMS and DCS processes are statutorily governed by
the Arms Export Control Act (AECA; P.L. 90-629, as
amended; 22 U.S.C. §§2751 et seq.) and the Foreign
Assistance Act of 1961 (FAA; P.L. 87-195, as amended; 22
U.S.C. §§2151 et seq.). The Department of State
administers the AECA through the International Traffic in
Arms Regulations (ITAR; 22 C.F.R. Parts 120-130), which
also establishes licensing policy for the export of defense
articles and contains the U.S. Munitions List (USML), a list
of controlled defense articles. The ITAR do not apply to
FMS transactions.
The Department of State’s Office of Regional Security and
Arms Transfers, in the Bureau of Political-Military Affairs
(PM), oversees FMS transactions; DOD’s Defense Security
Cooperation Agency (DSCA) implements specific FMS
cases. The State Department’s Directorate of Defense Trade
Controls (DDTC), also in the PM Bureau, issues and
administers licenses for commercial sales. AECA Section
38(j)(1)(C) limits the scope of items that the United States
can include in Defense Trade Cooperation Treaties, such as
those described below. State Department officials have
identified the role of the Defense Technology Security
Administration (DTSA), which manages risks from the
international transfer of defense technology and critical
information, as particularly important for Pillar 2 activities.
FMS and DCS transfers meeting certain monetary value
thresholds are subject to congressional review. Section 36
of the AECA (22 U.S.C. §2776) requires the President to
submit a formal notification of such transactions to
Congress before issuing a Letter of Offer and Acceptance
for an FMS transfer or an export license for a DCS transfer.
The executive branch may not proceed with such transfers
if Congress adopts a joint resolution of disapproval within
an AECA-prescribed time period. In addition, 10 U.S.C.
§8677 requires the transfer of any naval vessel that exceeds
3,000 tons or is less than 20 years of age to be “specifically
authorized by law.” Section 1352 of the National Defense
Authorization Act for Fiscal Year 2024 (NDAA; P.L. 118-
31) exempts exports of three nuclear-powered submarines
from these AECA Section 36 and 10 U.S.C. §8677
requirements.
