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5. National Commitment

Senate Resolution 85, 91st Congress, Report No. 91-129, agreed to June 25, 1969

RESOLUTION Whereas accurate definition of the term "national commitment" in

recent years has become obscured: Now, therefore, be it

Resolved, That (1) a national commitment for the purpose of this resolution means the use of the Armed Forces of the United States on foreign territory, or a promise to assist a foreign country, government, or people by the use of the Armed Forces or financial resources of the United States, either immediately or upon the happening of certain events, and (2) it is the sense of the Senate that a national commitment by the United States results only from affirmative action taken by the executive and legislative branches of the United States Government by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment.

6. North Atlantic Alliance

a. Cooperative Agreements With NATO Allies and Other

Countries

Title 10, United States Code, Chapter 138, as enacted by Public Law 96-323 (North Atlantic Treaty Organizational Mutual Support Act of 1979, H.R. 5580), 94 Stat. 1016, approved August 4, 1980; and amended by Public Law 97-22 [Defense Officer Personnel Management Act Technical Corrections Act, H.R. 3807), 95 Stat. 124 at 138, approved July 10, 1981; Public Law 97–252 (Department of Defense Authorization Act, 1983; S. 2248), 96 Stat. 757, approved September 8, 1982; Public Law 98-525 (Department of Defense Authorization Act, 1985; H.R. 5167), 98 Stat. 2492, approved October 19, 1984; Public Law 99-145 (Department of Defense Authorization Act, 1986; S. 1160), 99 Stat. 583, approved November 8, 1985; Public Law 99-661 (National Defense Authorization Act for Fiscal Year 1987, S. 2638) 100 Stat. 3816, approved November 14, 1986; Public Law 100-26 [Defense Technical Corrections Act of 1987, H.R. 1783), 101 Stat. 273, approved April 27, 1987; Public Law 101-189 (National Defense Authorization Act for Fiscal Years 1990 and 1991, H.R. 2461), 103 Stat. 1352 at 1531, approved November 29, 1989; Public Law 101-510 (National Defense Authorization Act for Fiscal Year 1991, H.R. 4739), 104 Stat. 1485, approved November 5, 1990; Public Law 102-25 (Persian Gulf Conflict Supplemental Authorization and Personnel Benefits Act of 1991, S. 725), 105 Stat. 75, approved April 6, 1991; Public Law 102-190 (National Defense Authorization Act for Fiscal Years 1992 and 1993, H.R. 2100), 105 Stat. 1290, approved December 5, 1991; Public Law 102-484 (National Defense Authorization Act for Fiscal Years 1993, H.R. 5006), 106 Stat. 2315, approved October 23, 1992; Public Law 103-160 (National Defense Authorization Act for Fiscal Year 1994; H.R. 2401), 107 Stat. 1547, approved November 30, 1993

CHAPTER 138 COOPERATIVE AGREEMENTS WITH NATO

ALLIES AND OTHER COUNTRIES 1 SUBCHAPTER I-ACQUISITION AND CROSS-SERVICING

AGREEMENTS 1 $ 2341.2 Authority to acquire logistic support, supplies, and serv

ices for elements of the armed forces deployed outside

the United States 3 Subject to section 2343 of this title and subject to the availability of appropriations, the Secretary of Defense may

(1) acquire from the Governments of North Atlantic Treaty Organization countries and from North Atlantic Treaty Organization subsidiary bodies logistic support, supplies, and services for elements of the armed forces deployed outside the United States; 4 and

Sec. 931 of Public Law 101-189 (103 Stat. 1531) retitled chapter 138, redesignated secs. 23412350 as "subchapter I” and added "subchapter II” with secs. 2350a-2350f. Secs. 2350a-2350f are also included in Legislation on Foreign Relations Through 1993, vol. I-B. Chapter 138 was formerly titled “North Atlantic Treaty Organization Acquisition and Cross-Servicing Agreements”.

2 Originally enacted as secs. 2321-2331, sec. 1304 of the Department of Defense Authorization Act, 1986 (Public Law 99-145; 99 Stat. 741), redesignated secs. 2321 through 2328 as 2341 through 2348; repealed sec. 2329; and redesignated secs. 2330 and 2331 as secs. 2349 and 2350.

3 Sec. 1104(a) of Public Law 99-661 (100 Stat. 3963) restated secs. 2341 and 2342. Previously, sec. 1304(axl) and (4) of Public Law 99-145 (99 Stat. 741) redesignated and amended these sections.

(2) acquire from any government not a member of the North Atlantic Treaty Organization 5 logistic support, supplies, and services for elements of the armed

forces deployed (or to be deployed) outside the United States 6 if that country

(A) has a defense alliance with the United States;

(B) permits the stationing of members of the armed forces in such country or the homeporting of naval vessels of the United States in such country;

(C) has agreed to preposition materiel of the United States in such country; or

(D) serves as the host country to military exercises which include elements of the armed forces or permits other military operations by the armed forces in such

country. 8 2342.2 Cross-servicing ? agreements

(a) 8 (1) Subject to section 2343 of this title and to the availability of appropriations, and after consultation with the Secretary of State, the Secretary of Defense may enter into an agreement de scribed in paragraph (2) with

(A) the government of a North Atlantic Treaty Organization country;

(B) a subsidiary body of the North Atlantic Treaty Organization; or

(C) the government of a country not a member of the North Atlantic Treaty Organization but which is designated by the Secretary of Defense, subject to the limitations prescribed in subsection (b), as a government with which the Secretary may

enter into agreements under this section. (2) An agreement referred to in paragraph (1) is an agreement under which the United States agrees to provide logistic support, supplies, and services to the military forces of a country or subsidiary body referred to in paragraph (1) in return for the reciprocal provision of logistic support, supplies, and services by such government or subsidiary body to elements of the armed forces.

4 Sec. 1312(a)(1) of Public Law 102-484 (106 Stat. 2547) struck out “in Europe and adjacent waters" and inserted in lieu thereof "outside the United States”, effective pursuant to sec. 1312(c) of that Act “on the date of enactment of this Act [October 23, 1992) and shall apply to acquisitions of logistics support, supplies, and services under chapter 138 of title 10, United States Code, that are initiated on or after the date of enactment of this Act.",

5 Sec. 1312(a)(2XA) of Public Law 102-484 (106 Stat. 2547) struck out “in which elements of the armed forces are deployed (or are to be deployed)" at this point, effective pursuant to sec. 1312.c) of that Act "on the date of enactment of this Act (October 23, 1992) and shall apply to acquisitions of logistics support, supplies, and services under chapter 138 of title 10, United States Code, that are initiated on or after the date of enactment of this Act.".

6 Sec. 1312(aX2XB) of Public Law 102-484 (106 Stat. 2547) struck out “in such country or in the military region in which such country is located” and inserted in lieu thereof "outside the United States”, effective pursuant to sec. 1312(c) of that Act on the date of enactment of this Act (October 23, 1992) and shall apply to acquisitions of logistics support, supplies, and services under chapter 138 of title 10, United States Code, that are initiated on or after the date of enactment of this Act.”.

7 Sec. 1231(9) of Public Law 100-180 (101 Stat. 1160) substituted "Cross-servicing" for "Cross servicing".

8 Sec. 1465 of Public Law 101-510 (104 Stat. 1692) amended and restated subsec. (a). Previous ly, sec. 1104(a) of Public Law 99-661 (100 Stat. 3963) amended and restated subsec. (a), and added subsecs. (b) through (d).

(b) The Secretary of Defense may not designate a country for an agreement under this section

(1) unless the Secretary, after consultation with the Secretary of State, determines that the designation of such country for such purpose is in the interest of the national security of the United States; and

(2) in the case of a country which is not a member of the North Atlantic Treaty Organization, notifies the Committees on Armed Services and Foreign Relations of the Senate and the Committees on Armed Services and Foreign Affairs of the House of Representatives at least 30 days before the date on which such country is designated by the Secretary under sub

section (a). (c) The Secretary of Defense may not use the authority of this subchapter to procure from any foreign government as a routine or normal source any goods or services reasonably available from United States commercial sources.

(d) The Secretary shall prescribe regulations to ensure that contracts entered into under this subchapter are free from self-dealing, bribery, and conflict of interests. 8 2343.2 Law applicable to acquisition and cross-servicing agree

ments (a) Except as provided in subsection (b), acquisition of logistic support, supplies, and services under section 2341 9 of this title and agreements entered into under section 2342 9 of this title shall be made in accordance with chapter 137 of this title and the provisions of this subchapter.

(b) Sections 10 2207, 2304(a), 2306(a), 2306(b), 2306(e), 2306a, and 2313 of this title and 11 section 3741 of the Revised Statutes (41 U.S.C. 22) 12 shall not apply to acquisitions made under the authority of section 2341 of this title or to agreements entered into under section 2342 of this title. $ 2344.2 Methods of payment for acquisitions and transfers by the

United States (a) Logistics support, supplies, and services may be acquired or transferred by the United States under the authority of this subchapter on a reimbursement basis or by replacement-in-kind or exchange of supplies or services of an equal value. 13

(b)(1) In entering into agreements with the Government of another North Atlantic Treaty Organization country or other foreign country 14 for the acquisition or transfer of logistic support, supplies, and services on a reimbursement basis, the Secretary of Defense shall negotiate for adoption of the following pricing principles for reciprocal application:

Sec. 1304(aX5) of Public Law 99-145 (99 Stat. 741) substituted "2341" for "2321" and "2342" for "2322''.

10 Sec. 1233(d) of Public Law 100-456 (102 Stat. 2057) struck out "section" preceding “2306a". Sec. 71gX2) of Public Law 100-26 (101 Stat. 282) substituted “2306a" for “2306()”. Sec. 961(b) of Public Law 99-145 (99 Stat. 703) substituted "2304(a)” for “2304(g)"; sec. 1304(a)(5) of that Act (99 Stat. 741) substituted "2341" for "2321” and “2342" for "2322".

11 Sec. 1061(aX12XA) of Public Law 102-190 (105 Stat. 1473) struck out "this title," and inserted in lieu thereof "this title and”.

12 Sec. 1061(aX12XB) of Public Law 102-190 (105 Stat. 1473) struck out reference to sec. 719 of the Defense Production Act of 1950 (50 U.S.C. App. 2168), which was repealed earlier by sec. 5(b) of Public Law 100-679 (102 Stat. 4063).

13 Sec. 938(a) of Public Law 101-189 (103 Stat. 1539) struck out “identical or substantially identical nature" and inserted in lieu thereof “equal value'.

** Sec. 1104(X1) of Public Law 99-661 (100 Stat. 3964) inserted “or other foreign country". 15 Sec. 11(a8) of Public Law 97-22 (95 Stat. 138) substituted "this chapter" for “this Act". References to chapter were subsequently changed to "subchapter" by sec. 931(eX1) of Public Law 101-189. 16 Sec. 1104(bX2) of Public Law 99-661 (100 Stat. 3964) inserted “or other foreign country". 17 Sec. 938(b) of Public Law 101-189 (103 Stat. 1539) added subsec. (c).

(A) The price charged by a supplying country for logistics support, supplies, and services specifically procured by the supplying country from its contractors for a recipient country shall be no less favorable than the price for identical items or services charged by such contractors to the armed forces of the supplying country, taking into account price differentials due to delivery schedules, points of delivery, and other similar considerations.

(B) The price charged a recipient country for supplies furnished by a supplying country from its inventory, and the price charged a recipient country for logistics support and serv. ices furnished by the officers, employees, or governmental agencies of a supplying country, shall be the same as the price charged for identical supplies, support, or services acquired by an armed force of the supplying country from such governmen

tal sources. (2) To the extent that the Secretary of Defense is unable to obtain mutual acceptance by the other country involved of the reciprocal pricing principles for reimbursable transactions set forth in paragraph (1)

(Ă) the United States may not acquire from such country any logistic support, supply, or service not governed by such reciprocal pricing principles unless the United States forces commander acquiring such support, supply, or service determines (after price analysis) that the price thereof is fair and reasonable; and

(B) transfers by the United States to such country under this subchapter 15 of any logistic support, supply, or service that is not governed by such reciprocal pricing principles shall be subject to the pricing provisions of the Arms Export Control Act (22 U.S.C. 2751 et seq.). (3) To the extent that indirect costs (including charges for plant and production equipment), administrative surcharges, and contract administration costs with respect to any North Atlantic Treaty Organization country or other foreign country waived by operation of the reciprocal pricing principles of para. graph (1), the Secretary of Defense may, on a reciprocal basis, agree to waive such costs.

(4) The pricing principles set forth in paragraph (2) and the waiver authority provided in paragraph (3) shall also apply to agreements with North Atlantic Treaty Organization subsidiary bodies under this subchapter.

(c) 17 In acquiring or transferring logistics support, supplies, or services under the authority of this subchapter 18 by exchange of

16

are not

18 Sec. 701(012) of Public Law 102-25 (105 Stat. 115) struck out "chapter" and inserted in lieu thereof “subchapter".

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