Return Expenses Paid and Yielded Act or the REPAY Act
This bill modifies certification and reporting requirements relating to certain sales of major defense equipment. It requires a review and report on options for expansion of the use of administrative surcharges under the foreign military sales program, monitoring on the performance of such program, and a report and briefing for determining the future-year needs for administrative surcharges under such program.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6296 Introduced in House (IH)]
<DOC>
115th CONGRESS
2d Session
H. R. 6296
To amend the Arms Export Control Act to modify certification and report
requirements relating to sales of major defense equipment with respect
to which nonrecurring costs of research, development, and production
are waived or reduced under the Arms Export Control Act, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 28, 2018
Ms. Speier (for herself, Mr. Duncan of Tennessee, Mr. Lewis of
Minnesota, Mr. Ted Lieu of California, Mr. Meadows, and Mr. Raskin)
introduced the following bill; which was referred to the Committee on
Foreign Affairs
_______________________________________________________________________
A BILL
To amend the Arms Export Control Act to modify certification and report
requirements relating to sales of major defense equipment with respect
to which nonrecurring costs of research, development, and production
are waived or reduced under the Arms Export Control Act, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Return Expenses Paid and Yielded
Act'' or ``REPAY Act''.
SEC. 2. MODIFICATION OF CERTIFICATION AND REPORT REQUIREMENTS RELATING
TO SALES OF MAJOR DEFENSE EQUIPMENT WITH RESPECT TO WHICH
NONRECURRING COSTS OF RESEARCH, DEVELOPMENT, AND
PRODUCTION ARE WAIVED OR REDUCED UNDER THE ARMS EXPORT
CONTROL ACT.
(a) Certification.--Section 36(b) of the Arms Export Control Act
(22 U.S.C. 2776(b)) is amended by adding at the end the following:
``(7)(A) In the case of any letter of offer to sell any major
defense equipment for $14,000,000 or more, in addition to the other
information required to be contained in a certification submitted to
the Congress under this subsection, or a similar certification prior to
finalization of a letter of offer to sell, each such certification
shall include the value of any charge or charges for the proportionate
amount of any nonrecurring costs of research, development, and
production of the major defense equipment that was waived or reduced
under section 21(e).
``(B) Each such certification shall also include information on--
``(i) the type of waiver or reduction;
``(ii) the percentage of otherwise obligated nonrecurring
costs with respect to which the waiver or reduction comprises;
``(iii) a justification for issuance of the waiver or
reduction;
``(iv) in the case of a waiver or reduction made under
paragraph (2)(A) of section 21(e)--
``(I) the manner in which a sale would
significantly advance standardization with the foreign
countries or international organization described in
such section; and
``(II) the extent to which the sale's significance
should be considered relative to the existing
capabilities of the foreign country or international
organization and the manner in which the major defense
equipment would enhance the capacity of the country or
organization in joint operations; and
``(v) in the case of a waiver or reduction made under
paragraph (2)(B) of section 21(e)--
``(I) the military needs and ability to pay of the
foreign country or international organization;
``(II) the price and capability of other relevant
options that are or likely would be considered by the
foreign country or international organization for
purchase in lieu of the major defense equipment
described in the letter of offer; and
``(III) the previous buying history and existing
capabilities of the foreign country or international
organization.''.
(b) Report.--Section 36(a) of the Arms Export Control Act (22
U.S.C. 2776(a)) is amended--
(1) in paragraph (11), by striking ``and'' at the end;
(2) in paragraph (12), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(13) with respect to requests to waive or reduce
nonrecurring costs with respect to the sale of major defense
equipment for $14,000,000 or more under this Act, a report on--
``(A) the total number of such requests that have
been approved or denied during the quarter, including
the total number of such requests that are currently
under review and pending a decision; and
``(B) for each such request--
``(i) an identification of the foreign
country or international organization
requesting the waiver or reduction; and
``(ii) the total amount of nonrecurring
costs to be waived or reduced;
``(iii) a description of the major defense
equipment to be purchased; and
``(iv) the justification for the waiver or
reduction; and
``(C) for each such request that is approved, the
actual amount of nonrecurring costs that are waived or
reduced that are attributable to quantities of major
defense equipment sold under such request.''.
(c) Repeal of Waiver Authority in Case of Sales of Major Defense
Equipment Also Being Procured for Use by United States Armed Forces.--
Section 21(e)(2) of the Arms Export Control Act (22 U.S.C. 2761(e)(2))
is amended--
(1) in subparagraph (B)--
(A) in the matter preceding clause (i)--
(i) by striking ``The President'' and
inserting ``Except as provided subparagraphs
(D) and (E), the President''; and
(ii) by striking ``that--'' and all that
follows through ``(i) imposition'' and
inserting ``that imposition'';
(B) by striking ``sale; or'' and inserting
``sale.''; and
(C) by striking clause (ii); and
(2) by inserting at the end the following new
subparagraphs:
``(D) The President may not waive the charge or charges for
a proportionate amount of any nonrecurring costs that would
otherwise be considered appropriate under paragraph (1)(B) for
a particular sale to a country or international organization
for a two-year period that begins on any of the following
dates:
``(i) The date of approval of a waiver under
paragraph (1)(B) of a charge or charges that are valued
at $16,000,000 or more under this Act with respect to a
sale to the country or organization.
``(ii) The date that is the last day of any five-
year period in which the country or organization
receives 15 or more waivers of a charge or charges
under paragraph (1)(B) with respect to sales to the
country or organization.
``(iii) The date that is the last day of any five-
year period in which the country or organization
receives waivers of a charge or charges under paragraph
(1)(B) that are valued at $425,000,000 or more under
this Act with respect to sales to the country or
organization.
``(E)(i) In the case of any proposed waiver of the charge
or charges which would otherwise be considered appropriate
under paragraph (1)(B) for a particular sale to a country or
international organization of major defense equipment for
$10,000,000 or more under this Act, the President shall submit
to the Speaker of the House of Representatives, the Committee
on Foreign Affairs of the House of Representatives, and to the
chairman of the Committee on Foreign Relations of the Senate a
notification with respect to such proposed waiver.
``(ii) The President may not waive such charge or charges
if Congress, not later than 60 calendar days after receiving
such notification, enacts a joint resolution prohibiting the
proposed waiver.''.
(d) Maximum Aggregate Amount of Charges for Administrative
Services.--Section 21(e) of the Arms Export Control Act (22 U.S.C.
2761(e)) is amended--
(1) in paragraph (1), by inserting ``subject to paragraph
(4),'' before ``administrative services''; and
(2) by adding at the end the following new paragraph:
``(4)(A) For each fiscal year beginning on or after the
date of the enactment of the Return Expenses Paid and Yielded
Act, the President shall--
``(i) determine a maximum aggregate amount of
charges for administrative services that would be
required by paragraph (1)(A) based on the ability of
the Department of Defense to issue and administer
letters of offer for sale of defense articles or the
sale of defense services pursuant to this section or
pursuant to section 22 of this Act; and
``(ii) submit to Congress a report that contains
the determination and specifies the maximum aggregate
amount of charges for administrative services.
``(B)(i) Except as provided in clause (ii), charges for
administrative services that are required by paragraph (1)(A)
may not exceed the maximum aggregate amount of charges for
administrative services determined under subparagraph (A) for
the fiscal year involved.
``(ii) The President may waive the requirement of clause
(i) on a case-by-case basis if the amount of charges for
administrative services that are required by paragraph (1)(A)
with respect to a sale of defense articles or a sale of defense
services would exceed the maximum aggregate amount of charges
for administrative services determined under subparagraph (A)
for the fiscal year.''.
(e) Modification of Administrative Expenses.--
(1) In general.--Section 43(b) of the Arms Export Control
Act (22 U.S.C. 2792(b) is amended--
(A) in paragraph (1), by adding ``and'' at the end;
(B) in paragraph (2), by striking ``; and'' and
inserting a period; and
(C) by striking paragraph (3).
(2) Conforming amendment.--Section 21(e)(1)(A) of the Arms
Export Control Act (22 U.S.C. 2761(e)(1)(A)) is amended by
striking ``and section 43(c)''.
(f) Biennial Review and Modification of User Charges.--
(1) In general.--Notwithstanding any other provision of
law, the Secretary of Defense, acting through the Director of
the Defense Security Cooperation Agency, shall, not less than
once every two years--
(A) carry out a review of user charges under the
foreign military sales program and, based on the
results of the review, modify the user charges as
appropriate; and
(B) submit to the appropriate congressional
committees a report that contains the results of the
review carried out under subparagraph (A) and a
description of any user charges that, based on the
results of the review, were modified under subparagraph
(A).
(2) Appropriate congressional committees defined.--In this
subsection, the term ``appropriate congressional committees''
means--
(A) the Committee on Armed Services and the
Committee on Foreign Affairs of the House of
Representatives; and
(B) the Committee on Armed Services and the
Committee on Foreign Relations of the Senate.
SEC. 3. REVIEW AND REPORT ON USE AND MANAGEMENT OF ADMINISTRATIVE
SURCHARGES UNDER THE FOREIGN MILITARY SALES PROGRAM.
(a) Review.--
(1) In general.--The Secretary of Defense, acting through
the Director of the Defense Security Cooperation Agency, shall
review options for expanding the use of administrative
surcharges under the foreign military sales program, including
practices for managing administrative surcharges and contract
administrative services surcharges.
(2) Matters to be included.--The review conducted under
paragraph (1) shall include the following:
(A) A determination of which specific expenses are
incurred by the United States Government in operation
of the foreign military sales program that the
administrative surcharge does not currently pay for.
(B) The estimated annual cost of each of such
specific expenses.
(C) An assessment of the costs and benefits of
funding such specific expenses through the
administrative surcharge, including any data to support
such an assessment.
(D) An assessment of how the Department of Defense
could calculate an upper bound of a target range for
the administrative surcharge account and the contract
administration services surcharge account, including an
assessment of the costs and benefits of setting such a
bound.
(E) An assessment of how the Department of Defense
calculates the lower bound, or safety level, for the
administrative surcharge account and the contract
administration services surcharge account, including
what specific factors inform the calculation and
whether such a method for calculating the safety level
is still valid or should be revisited.
(F) An assessment of the process used by the
Department of Defense to review and set rates for the
administrative surcharge and the contract
administration services surcharge, including the extent
to which outside parties are consulted and any
proposals of the Department of Defense may have for
better ensuring that the fee rates are set
appropriately.
(G) Such other matters as the Secretary of Defense
determines to be appropriate.
(b) Report.--Not later than 120 days after the date of the
enactment of this Act, the Secretary of Defense, acting through the
Director of the Defense Security Cooperation Agency, shall submit to
the congressional defense committees a report on--
(1) the findings of the review conducted under paragraph
(1); and
(2) any legislative changes needed to allow the surcharge
under the foreign military sales program to pay for any
expenses currently not covered by administrative surcharge
under the foreign military sales program.
(c) Foreign Military Sales Program Defined.--In this subsection,
the term ``foreign military sales program'' means the program
authorized under chapter 2 of the Arms Export Control Act (22 U.S.C.
2761 et seq.).
SEC. 4. PERFORMANCE MEASURES TO MONITOR FOREIGN MILITARY SALES PROGRAM.
(a) In General.--The Secretary of Defense, acting through the
Director of the Defense Security Cooperation Agency and in consultation
with the heads of other relevant components of the Department of
Defense, shall enhance the ability of the Department of Defense to
monitor the performance of the foreign military sales program by taking
the following actions:
(1) Develop performance measures to monitor the timeliness
of deliveries of defense articles and defense services to
purchasers in accordance with the delivery schedule for each
sale under the foreign military sales program.
(2) Identify key choke points, processes, and tasks that
contribute most significantly to delays, shortcomings, and
issues in the foreign military sales program.
(3) Review existing performance measures for the foreign
military sales program to determine whether such measures need
to be updated, replaced, or supplemented to ensure that all key
aspects of the foreign military sales program's efficiency and
service of United States national interests are able to be
monitored and informed by reliable data.
(b) Report on Performance Measures.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Defense, acting
through the Director of the Defense Security Cooperation
Agency, shall submit to the congressional defense committees a
report that lists the performance measures developed and
identified under subsection (a).
(2) Matters to be included.--The report required by
paragraph (1) shall--
(A) define the performance measures, including
targets set for the performance measures;
(B) identify the data systems used to monitor the
performance measures;
(C) identify any concerns related to the
reliability of the data used to monitor the performance
measures; and
(D) report the results for the performance measures
for the most recent fiscal year.
(3) Plan.--If the performance measures developed and
identified under subsection (a) cannot be included in the
report required by paragraph (1) for the most recent fiscal
year based on reliable and accessible data, the report shall
include a plan for ensuring that such data will be monitored
within a defined period of time.
(4) Update.--
(A) In general.--For each fiscal year after the
fiscal year in which the report required by subsection
(b) is submitted to the congressional defense
committees, the Secretary of Defense shall submit to
the congressional defense committees an update of the
report required by paragraph (1).
(B) Matters to be included.--Each update of the
report required by paragraph (1) shall also include the
following:
(i) For any performance measures that
indicate a decreased level of performance from
the prior year--
(I) a description of the factors
that led to such decreased level of
performance; and
(II) plans to improve such level of
performance.
(ii) For any performance measures that
remain unable to be monitored due to lack of
reliable and accessible data, an update on
plans to improve the monitoring of data.
(c) Briefing.--Not later than 180 days after the date on which the
Secretary of Defense, acting through the Director of the Defense
Security Cooperation Agency, submits to the congressional defense
committees the report required by subsection (b), the Comptroller
General of the United States shall provide a briefing to the
congressional defense committees on the report, including an evaluation
of the performance measures developed and identified under subsection
(a).
SEC. 5. REPORT AND BRIEFING ON ADMINISTRATIVE BUDGETING OF FOREIGN
MILITARY SALES PROGRAM.
(a) In General.--Not later than one year after the date of the
enactment of this Act, the Comptroller General of the United States
shall provide a briefing to the congressional defense committees and
submit to the congressional defense committees a report on the
methodology used by the Department of Defense to determine future-year
needs for administrative surcharges under the foreign military sales
program.
(b) Matters To Be Included.--The briefing and report required by
subsection (a) shall include the following:
(1) A description of the methodology the Department of
Defense used to develop the overall administrative budget of
the foreign military sales program and the administrative
budgets for each other relevant component of the Department of
Defense that receives funds from the foreign military sales
program.
(2) An assessment of the extent to which the methodology
described in paragraph (1) reflects relevant best practices.
(3) Any other related matters the Comptroller General
determines to be appropriate.
SEC. 6. DEFINITIONS.
In this Act:
(1) Congressional defense committees.--The term
``congressional defense committees'' has the meaning given such
term in section 101 of title 10, United States Code.
(2) Foreign military sales program.--The term ``foreign
military sales program'' means the program authorized under
chapter 2 of the Arms Export Control Act (22 U.S.C. 2761 et
seq.).
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Foreign Affairs.
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