§10431 — Title 22 Foreign Relations and Intercourse | U.S. Code

Summary

Allows the President to sell up to two Virginia Class submarines to Australia starting one year after December 22, 2023, and to sell no more than one additional Virginia Class submarine to Australia under section 21 of the Arms Export Control Act during the 20-year period beginning December 22, 2023, to support the AUKUS partnership. These transfers do not have to follow section 36 of the Arms Export Control Act (22 U.S.C. 2776) or section 8677 of title 10, and any U.S. costs tied to a transfer must be charged to Australia. The President must give Congress many certifications before and after a transfer. At least 270 days before a transfer, the President must certify that the sale will not weaken U.S. undersea forces, fits U.S. foreign policy and security goals, advances AUKUS, that U.S. submarine production and maintenance investments are sufficient, that Australia has provided needed funds and support, and that Australia can host and operate the subs. A transfer can only happen if the U.S. and Australia have a mutual defense agreement that sets a clear legal framework for Australia’s purchase of conventionally armed, nuclear-powered submarines and meets the highest nonproliferation standards. Money received from a sale can be placed into certain U.S. accounts at the President’s choice and kept until spent. Not later than 30 days before first delivery, the President must notify Congress that Australia has met required operational capabilities (including supporting 4 rotationally deployed Virginia class subs and 1 Astute class sub, and having sovereign-ready capability for crewing, operations, regulation, emergency procedures, and long-term planning such as nuclear defueling). The President must report funds received and where they are deposited within 30 days after each transfer. Transfers of special nuclear material or nuclear-use facilities must follow section 2121 of title 42. The President may use some sale proceeds to buy replacement naval nuclear propulsion plants and fuel. The President may also approve defense services to Australia and the United Kingdom to support these transfers and Australia’s submarine industrial base, including to private-sector personnel, subject to export rules, security controls, and a certification to Congress 30 days before the first such transfer and annually. Finally, not later than 180 days after December 22, 2023, and each year for 15 years, the President must send Congress a classified report on transfer status, AUKUS submarine cooperation and challenges, expansion plans for public and private Virginia class production and repair facilities (including proposed work in Australia and the United Kingdom), a 15-year submarine procurement schedule, and a list of defense services transfers and private-sector recipients.

Title 22, §10431

Foreign Relations and Intercourse — Source: USLM XML via OLRC

(a)Effective beginning on the date that is one year after December 22, 2023, the President is authorized to transfer up to two Virginia Class submarines from the inventory of the Department of the Navy to the Government of Australia on a sale basis, and transfer not more than one additional Virginia Class submarine to the Government of Australia on a sale basis pursuant to section 21 of the Arms Export Control Act (22 U.S.C. 2761) during the 20-year period beginning on December 22, 2023, to implement the trilateral security partnership between Australia, the United Kingdom, and the United States (in this section referred to as the “AUKUS partnership”).

(b)The transfer of a vessel authorized under subsection (a) shall not be subject to the requirements of—

(1)section 36 of the Arms Export Control Act (22 U.S.C. 2776); or

(2)section 8677 of title 10.

(c)Any expense incurred by the United States in connection with a transfer of a vessel authorized under subsection (a) shall be charged to the Government of Australia notwithstanding section 2321j(e) of this title.

(d)(1)Not later than 270 days prior to the transfer of a vessel authorized under subsection (a), the President shall submit to the appropriate congressional committees and leadership a certification that—

(A)the transfer of such vessels—

(i)will not degrade the United States undersea capabilities;

(ii)is consistent with United States foreign policy and national security interests; and

(iii)is in furtherance of the AUKUS partnership;

(B)the United States is making sufficient submarine production and maintenance investments to meet the combination of United States military requirements and the requirements under subparagraph (A);

(C)the Government of Australia has provided the appropriate funds and support for the additional capacity required to meet the requirements identified in this section; and

(D)the Government Australia has the capability to host and fully operate the vessels authorized to be transferred.

(2)The requirement for the Chief of Naval Operations to make a certification under section 8678 of title 10 shall not apply to the transfer of a vessel authorized under subsection (a).

(3)(A)The President may not provide for the transfer of a vessel authorized under subsection (a) unless the United States and Australia have entered into a mutual defense agreement that meets the requirements of subparagraph (B) and such agreement is in effect.

(B)A mutual defense agreement meets the requirements described in this subparagraph if the agreement—

(i)provides a clear legal framework for the sole purpose of Australia’s acquisition of conventionally armed, nuclear-powered submarines; and

(ii)meets the highest nonproliferation standards for the exchange of nuclear materials, technology, equipment, and information between the United States and Australia.

(4)A transfer of vessel that is a Virginia class submarine on a sale basis other than a transfer described in subsection (a) may occur only if such transfer is explicitly authorized pursuant to a law enacted after December 22, 2023.

(e)(1)Notwithstanding any provision of law pertaining to the crediting of amounts received from a sale under the terms of section 21 of the Arms Export Control Act (22 U.S.C. 2761), any receipt of the United States as a result of a transfer of a vessel authorized under subsection (a) shall—

(A)be credited, at the discretion of the President to—

(i)the appropriation, fund, or account used in incurring the original obligation;

(ii)an appropriate appropriation, fund, or account currently available for the purposes for which the expenditures for the original acquisition of submarines transferred under this section were made; or

(iii)any other appropriation, fund, or account available for the improvement of the United States submarine industrial base; and

(B)remain available for obligation until expended for the same purpose as the appropriation to which the receipt is credited.

(2)(A)Not later than 30 days before the date of the delivery of the first vessel authorized to be transferred under subsection (a), the President shall notify the appropriate congressional committees and leadership of the following:

(i)The Government of Australia has achieved Submarine Rotational Forces-West full operational capability to support 4 rotationally deployed Virginia class submarines and one Astute class submarine, including having demonstrated the domestic capacity to fully perform all the associated activities necessary for the safe hosting and operation of nuclear-powered submarines.

(ii)The Government of Australia has achieved sovereign-ready initial operational capability to support a Royal Australian Navy Virginia class submarine, including having demonstrated the domestic capacity to fully perform all the associated—

(I)activities necessary for the safe hosting and operation of nuclear-powered submarines;

(II)crewing;

(III)operations;

(IV)regulatory and emergency procedures, including those specific to nuclear power plants; and

(V)detailed planning for enduring Virginia class submarine ownership, including each significant event leading up to and including nuclear defueling.

(B)Not later than 30 days after the date of a transfer of any vessel authorized under subsection (a), and upon any transfer or depositing of funds received pursuant to such a transfer, the President shall notify the appropriate congressional committees and leadership of—

(i)the amount of funds received pursuant to the transfer; and

(ii)the specific account or fund into which the funds described in clause (i) are deposited.

(C)Not later than 30 days after the receipt of funds as described in subparagraph (B), the President shall submit to the appropriate congressional committees and leadership a report on the matters described in clauses (i) and (ii) of subparagraph (A).

(f)(1)With respect to any special nuclear material for use in utilization facilities or any portion of a vessel transferred under the authority of subsection (a) constituting utilization facilities for military applications under section 2121 of title 42, the transfer of such material or such facilities shall only occur in accordance with such section 2121 of title 42.

(2)The President may use proceeds from a transfer described in subparagraph (1) for the acquisition of submarine naval nuclear propulsion plants and the nuclear fuel to replace the propulsion plants and fuel transferred to the Government of Australia.

(g)

(h)(1)The President may transfer or authorize the export of defense services (as such term is defined in section 47 of the Arms Export Control Act (22 U.S.C. 2794)) to the Government of Australia and the Government of the United Kingdom necessary or incidental to support the transfer and operation of vessels authorized under subsection (a).

(2)The transfer or export of defense services under this subsection may be directly exported to private and public-sector personnel of Australia or to private and public-sector personnel of the United Kingdom to support the development of the Australian submarine industrial base necessary for submarine security activities between members of the AUKUS partnership, including in the case in which such private and public-sector personnel are not officers, employees, or agents of the Government of Australia or the Government of the United Kingdom.

(3)Any person who receives any defense service transferred or exported under paragraph (1) may retransfer or reexport such service to other persons only in accordance with the requirements of the Arms Export Control Act (22 U.S.C. 2751 et seq.).

(4)(A)Any defense service transferred or exported under paragraph (1) shall be subject to appropriate security controls to ensure that any sensitive information conveyed by such transfer or export is protected from disclosure to persons unauthorized by the United States to receive such information.

(B)Not later than 30 days before the first transfer or export of a defense service under paragraph (1), and annually thereafter, the President shall certify to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives that the controls described in subparagraph (A) will protect the information described in such subparagraph for the defense services so transferred or exported.

(i)(1)Not later than 180 days after December 22, 2023, and annually thereafter for 15 years, the President shall submit to the appropriate congressional committees and leadership a report describing—

(A)the status of the transfer of vessels authorized under subsection (a);

(B)the implementation of submarine security cooperation under the AUKUS partnership and challenges towards its implementation;

(C)expansion of the public and private Virginia class submarine production and repair facilities, to include proposed work conducted in Australia and the United Kingdom to meet the additional work required by commitments under the AUKUS partnership;

(D)an annual procurement schedule for the total quantity of submarines the Department of Defense plans to procure over the 15 years following December 22, 2023; and

(E)a list of transfers or exports of defense services authorized under subsection (h) and the private-sector personnel of Australia or the private-sector personnel of the United Kingdom to whom the defense services were exported.

(2)The report required by this subsection shall be submitted in classified form.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Arms Export Control Act, referred to in subsec. (h)(3), is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, which is classified principally to chapter 39 (§ 2751 et seq.) of this title. For complete classification of this Act to the Code, see

Short Title

note set out under section 2751 of this title and Tables. Codification Section is comprised of section 1352 of Pub. L. 118–31. Subsec. (g) of section 1352 of Pub. L. 118–31 amended section 8680 of Title 10, Armed Forces.

Executive Documents

Delegation of Functions Functions and authorities vested in the President under subsecs. (e)(2)(B), (C) and (g) of this section delegated to Secretary of Defense, in consultation with Secretary of Energy, and under subsecs. (d)(1), (e)(2)(A), (h)(4), and (i) of this section to Secretary of Defense, in consultation with Secretaries of State and Energy, by Memorandum of President of the United States, § 1(a), (b), (c)(iii)–(v), July 9, 2024, 89 F.R. 57337, set out in a note under section 10413 of this title. Delegation of Functions and Authorities Under section 1352 and 1353 of the National Defense Authorization Act for Fiscal Year 2024 Memorandum of President of the United States, Dec. 11, 2024, 89 F.R. 101835, provided: Memorandum for the Secretary of State[,] the Secretary of Defense[,] the Secretary of Energy[, and] the Director of the Office of Management and Budget By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code: section 1. (a) I hereby delegate to the Secretary of State, in consultation with the Secretaries of Defense and Energy, the functions and authorities vested in the President by section 1352(a) of the National Defense Authorization Act for Fiscal Year 2024 (Public Law 118–31) (the “Act”) [22 U.S.C. 10431(a)]. (b) I hereby delegate to the Secretary of Defense, in consultation with the Secretaries of State and Energy and the Director of the Office of Management and Budget, the functions and authorities vested in the President by section 1352(e)(1)(A) of the Act. (c) I hereby delegate to the Secretary of Energy, in consultation with the Secretary of Defense and the Director of the Office of Management and Budget, the functions and authorities vested in the President by section 1352(f)(2) of the Act. (d) I hereby delegate to the Secretary of Defense for funds transferred to Department of Defense accounts and to the Secretary of Energy for funds transferred to Department of Energy accounts, in coordination with the Director of the Office of Management and Budget, the functions and authorities vested in the President by section 1353(c), 1353(e)(1)(D), and 1353(e)(3) of the Act [22 U.S.C. 10432(c), (e)(1)(D), (e)(3)]. (e) I hereby delegate to the Director of the Office of Management and Budget, in consultation with the Secretaries of Defense and Energy, as appropriate, the functions and authorities vested in the President by section 1353(a), 1353(e)(1)(A), 1353(e)(2), and 1353(f)(1) of the Act. Sec. 2. The delegation in this memorandum shall apply to any provision of any future public law that is the same or substantially the same as the provision referenced in this memorandum. Sec. 3. The Secretary of Defense is authorized and directed to publish this memorandum in the Federal Register. J.R. Biden, Jr.

§10431 Authorization of sales of Virginia Class submarines to Australia