[Federal Register Volume 63, Number 129 (Tuesday, July 7, 1998)]
[Rules and Regulations]
[Pages 36571-36578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17870]


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DEPARTMENT OF STATE

22 CFR Part 140

[Public Notice 2840]


Bureau for International Narcotics and Law Enforcement Affairs; 
Prohibition on Assistance to Drug Traffickers

AGENCY: Department of State (Bureau for International Narcotics and Law 
Enforcement Affairs).

ACTION: Final rule.

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SUMMARY: The Department of State issues these regulations to implement 
Section 487 of the Foreign Assistance Act of 1961, as amended (``FAA'') 
(22 U.S.C. 2291f).
    Section 487(a) directs the President to take all reasonable steps 
to ensure that assistance provided under the Foreign Assistance Act or 
the Arms Export Control Act is not provided to or through any 
individual or entity that the President knows or has reason to believe 
has been convicted of a violation of, or a conspiracy to violate, any 
law or regulation of the United States, a State or the District of 
Columbia, or a foreign country relating to narcotic or psychotropic 
drugs or other controlled substances; or is or has been an illicit 
trafficker in any such controlled substance or is or has been a knowing 
assistor, abettor, conspirator, or colluder with others in the illicit 
trafficking of any such substance. This rule establishes a single 
government-wide enforcement mechanism for Section 487. The regulations 
seek to achieve rigorous statutory enforcement in a

[[Page 36572]]

manner consistent with efficient foreign assistance program 
administration. They also seek to ensure protection of the procedural 
rights and interests of assistance recipients.

DATES: Effective date: October 5, 1998.

FOR FURTHER INFORMATION CONTACT: Office of Policy, Planning and 
Coordination, Bureau for International Narcotics and Law Enforcement 
Affairs, Department of State, 202-647-0457, or Office of Law 
Enforcement and Intelligence, Office of the Legal Adviser, Department 
of State, 202-647-7324.

SUPPLEMENTARY INFORMATION: This rule implements Section 487 of the 
Foreign Assistance Act of 1961, as amended (22 U.S.C. Sec. 2291f). The 
requirements of Section 487 are described in the Summary, above. The 
law further directs that regulations be issued to carry out the section 
and be submitted to Congress before they take effect. The 
responsibilities of the President under Section 487 have been delegated 
to the Secretary of State (E.O. 12163). The Secretary of State is 
issuing these regulations and has delegated the responsibility for 
their implementation to the Assistant Secretary for International 
Narcotics and Law Enforcement Affairs. The regulations are set forth in 
a new part of the Code of Federal Regulations, 22 CFR Part 140. 
Proposed regulations were published for comment on Feb. 9, 1995 (60 FR 
7737) and modifications have been made in light of comments received. 
The regulations have been submitted to Congress, as required by Section 
487(c).
    The procedures prescribed by these regulations apply to assistance 
under the Foreign Assistance Act of 1961, as amended, and the Arms 
Export Control Act. The regulations are set up in three Subparts: 
General (Subpart A, Secs. 140.1-140.3); Applicability (Subpart B, 
Sec. 140.4); and Enforcement (Subpart C, Secs. 140.5-140.14).
    The General Subpart (Subpart A) provides a statement of the 
regulations' purpose (Sec. 140.1), based upon the language of Section 
487 of the Foreign Assistance Act; identifies the authorities for 
issuance of the regulations (Sec. 140.2); and defines key terms used in 
the regulations (Sec. 140.3). The broad coverage of the regulations is 
reflected in the definitions of drug trafficking (Sec. 140.3(e)), money 
laundering (Sec. 140.3(f)), and narcotics offense (Sec. 140.3(g)), 
which are intended to be comprehensive. As noted in the definition of 
drug trafficking, it encompasses drug-related money laundering. One 
commenting agency asked for further definition of the terms 
``illicit,'' ``illicitly,'' and ``criminal.'' That comment was not 
adopted because we believe such definitions are not necessary. We note 
that the terms encompass activities that are illicit or illegal under 
the laws applicable to such activities.
    Two of the key terms defined in the regulations are ``covered 
country'' (Sec. 140.3(d)) and ``covered assistance'' (Sec. 140.3(c)). 
The term ``covered country'' corresponds to those countries listed on 
the ``majors list,'' i.e., the list of major illicit drug producing 
countries and major drug-transit countries, as determined annually by 
the President and transmitted to the appropriate Congressional 
committees as required by section 490(h) of the FAA.
    The term ``covered assistance'' is defined broadly, while excluding 
assessed contributions to an international organization and assistance 
that by operation of law is not subject to Section 487. The definition 
further provides that assistance in amounts less than $100,000 is 
excluded unless it pertains to: recipients of scholarships, 
fellowships, or participant training; or a covered individual or entity 
reasonably suspected of being or having been involved in drug 
trafficking by the agency providing assistance. These definitions are 
intended to ensure rigorous application of the statutory prohibition on 
assistance to drug traffickers, while fostering efficient program 
administration. Several comments requested a more complete listing of 
assistance that would be excluded from the term ``covered assistance'' 
by operation of other laws. Because such a list depends on specific 
statutory exemptions and is subect to change, we have concluded that 
further guidance in this area is more appropriately left to the 
implementing regulations of the relevant agency, which will be in a 
better position to keep the guidance current.
    One agency recommended the addition of a definition of the term 
``convicted;'' that definition has been added as Sec. 140.3(a).
    For ease of reference, the term ``covered individual or entity'' is 
defined in Sec. 140.4, where it is used, rather than in the definition 
section. Likewise, the term ``key individual'' is described in 
Sec. 140.6(a)(3), where it is introduced.
    The term ``Country Narcotics Coordinator'' is defined in section 
140.3(b). Comments from one agency acknowledged that the definition is 
drafted to preserve flexibility by not specifying particular positions 
at U.S. posts abroad but recommended further clarification to ensure 
that a designated CNC would be qualified to handle sensitive law 
enforcement information. The definition has not been changed, but we 
note that the CNC is a key position often held by the Deputy Chief of 
Mission at a U.S. diplomatic post. In the event that another person 
were assigned to exercise these functions, that person would 
necessarily have equally appropriate clearances to handle sensitive law 
enforcement information.
    The Applicability Subpart (Subpart B) explains the scope of the 
regulations. Their applicability is keyed primarily to ``covered 
individuals and entities'' that receive or provide direct or first-tier 
``covered assistance'' and are located or providing assistance within a 
``covered country.'' Concerns were raised that the definition of a 
``covered country'' as one on the list of major illicit drug producing 
or drug-transit countries issued annually pursuant to section 490(h) of 
the Foreign Assistance Act of 1961, as amended, would preclude action 
concerning assistance to a portion of a country or to another country 
on which relevant information is developed after issuance of the list. 
In response, Sec. 104.4(b) has been rewritten to include coverage of 
assistance within any other country, or portion thereof, that the 
Secretary of State or the Secretary's designee may at any time 
determine should be treated as if it were a covered country in order to 
fulfill the purpose of the regulations (Sec. 140.4(b)(1)). Furthermore, 
the regulations have been drafted carefully to ensure they are given 
their full statutory scope, i.e., that they are applied whenever an 
agency providing covered assistance has reasonable grounds to suspect 
that a proposed recipient individual or entity may be or may have been 
involved in drug trafficking or may have been convicted of a narcotics 
offense regardless of the country involved (Sec. 140.4(b)(2); see also 
Secs. 140.3(c)(2), 140.7(a), 140.9(a) and 140.11).
    The regulations are also applicable where a government agency 
providing covered assistance within a covered country has specifically 
designated a recipient beyond the first tier (see Secs. 140.4(a), 
140.7(b)). Additionally, they apply to individuals who receive a 
scholarship, fellowship, or participant training (unless the assistance 
is provided through a multilateral institution or international 
organization and the recipient has not been designated by the agency 
providing assistance). Further assurance that drug traffickers will not 
receive assistance is provided by the requirement that where an agency 
providing covered assistance to a multilateral institution or 
international organization does not

[[Page 36573]]

designate the assistance recipient, the agency's agreement with the 
multilateral institution or international organization shall stipulate 
that such entity is to make reasonable efforts to ensure that the 
assistance is not diverted in support of drug trafficking 
(Sec. 140.7(c)).
    The factual circumstances that give rise to application of the 
regulations are highly varied and may, on occasion, have potentially 
serious or sensitive foreign relations, national security, or law 
enforcement consequences. In rare circumstances, such potential 
consequences may require that, in fulfilling the statutory requirements 
of Section 487, the procedures set forth in the regulations be 
expanded, modified, utilized in a different manner or not utilized. 
This necessary flexibility is provided in the initial clause of 
Sec. 140.4. In response to comments by one agency raising concerns 
about possible disclosure of law enforcement investigatory information, 
however, that section has been amended to provide that Secs. 140.13 and 
140.14 will apply in all cases.
    The Enforcement Subpart (Subpart C) contains an overview 
(Sec. 140.5), which outlines the Subpart's scope. The applicable 
determination procedures, criteria to be applied in deciding whether to 
withhold assistance or take other measures, and procedures concerning 
violations identified subsequent to the obligation of funds are set 
forth in the Enforcement Subpart. The applicability of these procedures 
varies depending on the nature of the proposed recipient. The general 
framework is set forth in Sec. 140.6, in the context of covered 
assistance to foreign government entities. Variations of that framework 
are set forth in separate sections for: multilateral institutions and 
international organizations (Sec. 140.7); recipients of scholarships, 
fellowships, and participant training (Sec. 140.8); other non-
governmental entities and individuals (Sec. 140.9); and intermediate 
credit institutions (Sec. 140.10). (Note: In Sec. 140.9 the use of the 
phrase ``non-governmental entity'' is meant to encompass a broader 
category of organizations than might be encompassed by the term ``non-
governmental organization'' or its acronym, ``NGO.'' As explained in 
Sec. 140.9, it includes not only private voluntary agencies and 
educational institutions, but also for-profit firms and any other non-
governmental organizations.)
    The determination procedures set forth in the regulations are 
applied by the Country Narcotics Coordinator (as defined in 
Sec. 140.3(b)), who is responsible in the first instance for reviewing 
available information to determine whether a proposed assistance 
recipient is to be granted or denied assistance or whether other 
measures are to be taken to structure the provision of the assistance 
in such a way as to meet the requirements of Section 487 of the Foreign 
Assistance Act (Sec. 140.6(a)). Comments from one agency pointed out 
that agencies providing information that will be used for this purpose 
have a strong interest in how the system for reviewing information as 
required under Sec. 140.6(a)(1) is developed and suggested that 
parameters of such a system be included in the regulations. We have 
decided not to change the regulations on this point although we will 
provide guidance to CNCs separately on this matter in order to preserve 
flexibility in developing and adjusting such a system over time. 
Nevertheless, the State Department will consult with agencies that 
supply information in developing that guidance. An agency proposing 
assistance is responsible for providing the Country Narcotics 
Coordinator with the name of each key individual within a prospective 
recipient entity who may be expected to control or benefit from 
assistance as well as other relevant information that is readily 
available (Sec. 140.6(a)(3)). Questions as to who should be included in 
the group of key individuals will be resolved by the CNC, with review 
by the Assistant Secretary for INL at the request of the agency.
    Section 140.6(a)(6) further provides that it is the Assistant 
Secretary of State for International Narcotics and Law Enforcement 
Affairs (rather than the Country Narcotics Coordinator), in 
consultation with appropriate bureaus and agencies, who ordinarily will 
make any decision to withhold assistance or take other measures based 
on information or allegations that a key individual who is a senior 
government official of a foreign government has been convicted of a 
narcotics offense or has been engaged in drug trafficking. Personal 
involvement at or above the Assistant Secretary of State level is 
appropriate in such a case because it involves inherently sensitive 
foreign policy issues.
    The regulations provide a two-week period, extendable if necessary 
for another two weeks, within which the Country Narcotics Coordinator, 
in consultation with the agency proposing the assistance and other 
appropriate bureaus and agencies, is to make a determination whether 
assistance is to be provided or withheld, or other measures are to be 
taken to meet the requirements of section 487. The reference to other 
appropriate bureaus and agencies was added in response to a comment 
from one agency noting that the decision would need to be made on the 
basis of information supplied by other, often law enforcement, 
agencies. Section 140.6(b) outlines the factors to be considered in 
determining whether to withhold assistance or take other measures. In 
response to comments from one agency requesting additional guidance 
concerning the standard ``reasonable belief,'' we have changed that 
term as used in 140.6(b) to the exact words of the statute, ``reason to 
believe'' that a proposed recipient has been engaged in drug 
trafficking activities. When there is evidence that might lead to such 
a finding, the CNC will decide whether reports are credible and sources 
reliable, thus providing a reason to believe rather than merely raising 
a suspicion.
    In response to comments requesting further guidance on 
implementation, a new subsection (b)(3)(v) has been added to make clear 
that measures other than denial of assistance may be appropriate in 
certain cases where a negative determination is made as to one or more 
key individuals.
    The enforcement procedures applicable to recipients of 
scholarships, fellowships, and participant training (Sec. 140.8) and to 
other non-governmental entities and individuals (Sec. 140.9) include a 
pre-approval certification process. The regulations specify that false 
certification may subject the signatory to U.S. criminal prosecution 
under 18 U.S.C. 1001. (See Secs. 140.8(b), 140.9(c).) Although this 
penalty is described in the regulations, it is established 
independently by the referenced statute. The identification of a 
penalty in the regulations is not meant to limit the application of any 
criminal or civil penalty otherwise applicable.
    Section 140.10 concerns the procedures applicable to intermediate 
credit institutions. Such institutions are to be treated as either 
foreign government entities or non-governmental entities, depending on 
the nature of the particular institution. Section 140.10 also requires 
that agreements with such intermediate credit institutions include a 
contract clause concerning a refund procedure applicable to loans 
exceeding $1,000 made by any intermediate credit institution.
    Section 140.11 clarifies that the enforcement procedures 
established by Secs. 140.6-140.10 are not exhaustive, but represent 
only the minimum applicable procedures implementing Section 487 of the 
Foreign Assistance Act.
    The remaining provisions of the regulations establish notification 
and

[[Page 36574]]

review procedures. One agency commented that only the law enforcement 
agency whose investigation may be affected by disclosure of information 
is in a position to make a determination regarding the appropriateness 
of notifications and any decision to provide additional information. In 
response to these comments, Sec. 140.13(a) has been amended to ensure 
that no information beyond the statutory basis for withholding, 
suspending or terminating assistance to a foreign government or entity 
will be provided without the agreement of the originating agency. 
Special care has also been taken to minimize the risk that notification 
will interfere with an ongoing criminal investigation (Sec. 140.13(b)). 
An agency proposing covered assistance may request review of a Country 
Narcotics Coordinator's decision that the assistance must be withheld 
or other measures taken to comply with section 487 (Sec. 140.12). In 
addition, where the prospective assistance recipient is a U.S. entity, 
U.S. citizen, or permanent U.S. resident, a Country Narcotics 
Coordinator's preliminary decision to withhold assistance is referred 
to the Assistant Secretary of State for International Narcotics and Law 
Enforcement Affairs for final determination (Sec. 140.14). As with 
Sec. 140.13, in response to comments, Sec. 140.14(a) has been revised 
to provide that decisions on appropriate action concerning U.S. 
entities and individuals will be taken in consultation not only with 
the agency proposing the assistance but also the agency or agencies 
that provided information reviewed or relied upon in making the 
preliminary decision. One agency expressed concerns that procedures 
previously anticipated for review of denials of assistance under this 
section could be viewed as introducing a standard of proof inconsistent 
with section 487 and could lead to disclosure of classified materials 
or law enforcement investigative information. The section has been 
amended to remove references to pre-existing review procedures which 
would not ordinarily be applicable in the context of assistance grants. 
Section 140.14(b) also now states explicitly that the regulations shall 
not be interpreted to create a right to classified information or law 
enforcement investigatory information by such entity or individual.
    This amendment involves a foreign affairs function of the United 
States, as well as public grants, benefits and contracts, and is 
accordingly not subject to the requirements of the Regulatory 
Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996. It is also exempt from review under 
Executive Order 12866 but has been reviewed internally by the 
Department to ensure consistency with the purposes thereof.

List of Subjects in 22 CFR Part 140

    Drug traffic control, Foreign aid.

    For the reasons set out in the preamble, 22 CFR 140 is added to 
subchapter N as follows:

PART 140--PROHIBITION ON ASSISTANCE TO DRUG TRAFFICKERS

Subpart A--General

Sec.
140.1  Purpose.
140.2  Authorities.
140.3  Definitions.

Subpart B--Applicability

140.4  Applicability.

Subpart C--Enforcement

140.5  Overview.
140.6  Foreign government entities.
140.7  Multilateral institutions and international organizations.
140.8  Recipients of scholarships, fellowships, and participant 
training.
140.9  Other non-governmental entities and individuals.
140.10  Intermediate credit institutions.
140.11  Minimum enforcement procedures.
140.12  Interagency review procedures.
140.13  Notification to foreign entities and individuals.
140.14  Special procedures for U.S. entities and individuals.

    Authority: 22 U.S.C. 2651a(a)(4).

Subpart A--General


Sec. 140.1  Purpose.

    (a) This part implements Section 487 of the Foreign Assistance Act 
of 1961, as amended (22 U.S.C. Sec. 2291f).
    (b) Section 487(a) directs the President to ``take all reasonable 
steps'' to ensure that assistance under the Foreign Assistance Act of 
1961 (FAA) and the Arms Export Control Act (AECA) ``is not provided to 
or through any individual or entity that the President knows or has 
reason to believe'':

    (1) has been convicted of a violation of, or a conspiracy to 
violate, any law or regulation of the United States, a State or the 
District of Columbia, or a foreign country relating [to] narcotic or 
psychotropic drugs or other controlled substances; or
    (2) is or has been an illicit trafficker in any such controlled 
substance or is or has been a knowing assistor, abettor, 
conspirator, or colluder with others in the illicit trafficking in 
any such substance.


Sec. 140.2  Authorities.

    Authority to implement FAA Section 487 was delegated by the 
President to the Secretary of State by E.O. 12163, as amended, and 
further delegated by the Secretary to the Assistant Secretary of State 
for International Narcotics and Law Enforcement Affairs by Delegation 
of Authority No. 145, dated Feb. 4, 1980 (45 FR 11655), as amended.


Sec. 140.3  Definitions.

    The following definitions shall apply for the purpose of this part:
    (a) Convicted. The act of being found guilty of or legally 
responsible for a criminal offense, and receiving a conviction or 
judgment by a court of competent jurisdiction, whether by verdict or 
plea, and including convictions entered upon a plea of nolo contendere.
    (b) Country Narcotics Coordinator. The individual assigned by the 
Chief of Mission of a U.S. diplomatic post, in consultation with the 
Assistant Secretary of State for International Narcotics and Law 
Enforcement Affairs, in each foreign country to coordinate United 
States government policies and activities within a country related to 
counternarcotics efforts.
    (c) Covered assistance. Any assistance provided by an agency of the 
United States government under the FAA or AECA, except that it does not 
include:
    (1) Assistance that by operation of the law is not subject to FAA 
Section 487, such as:
    (i) Disaster relief and rehabilitation provided under Chapter 9 of 
Part I of the FAA; and
    (ii) Assistance provided to small farmers when part of a community-
based alternative development program under Part I or Chapter 4 of Part 
II of the FAA;
    (2) Assistance in a total amount less than $100,000 regarding a 
specific activity, program, or agreement, except that the procedures in 
Sec. 140.8 for recipients of scholarships, fellowships, and participant 
training shall apply regardless of amount. However, assistance shall be 
deemed covered assistance regardless of amount if the agency providing 
assistance has reasonable grounds to suspect that a covered individual 
or entity may be or may have been involved in drug trafficking; or
    (3) Payments of dues or other assessed contributions to an 
international organization.
    (d) Covered country. A country that has been determined by the 
President to be either a ``major illicit drug producing'' or ``major 
drug-transit'' country under Chapter 8 of Part I of the

[[Page 36575]]

FAA. The list of covered countries is submitted to Congress annually 
and set forth in the International Narcotics Control Strategy Report.
    (e) Drug trafficking. Any activity undertaken illicitly to 
cultivate, produce, manufacture, distribute, sell, finance or 
transport, or to assist, abet, conspire, or collude with others in 
illicit activities, including money laundering, relating to narcotic or 
psychotropic drugs, precursor chemicals, or other controlled 
substances.
    (f) Money laundering. The process whereby proceeds of criminal 
activity are transported, transferred, transformed, converted, or 
intermingled with legally acquired funds, for the purpose of concealing 
or disguising the true nature, source, disposition, movement, or 
ownership of those proceeds. The goal of money laundering is to make 
funds derived from or associated with illicit activity appear to have 
been acquired legally.
    (g) Narcotics offense. A violation of, or a conspiracy to violate, 
any law or regulation of the United States, a State or the District of 
Columbia, or a foreign country relating to narcotic or psychotropic 
drugs or other controlled substances.

Subpart B--Applicability


Sec. 140.4  Applicability.

    Except as otherwise provided herein or as otherwise specially 
determined by the Secretary of State or the Secretary's designee 
(except that decisions on notification and/or disclosure shall in all 
cases be subject to the provisions of Secs. 140.13 through 140.14), the 
procedures prescribed by this part apply to any ``covered individual or 
entity,'' i.e., any individual or entity, including a foreign 
government entity, a multilateral institution or international 
organization, or a U.S. or foreign non-governmental entity: (a)(1) That 
is receiving or providing covered assistance as a party to a grant, 
loan, guarantee, cooperative agreement, contract, or other direct 
agreement with an agency of the United States (a ``first-tier'' 
recipient); or
    (2) That is receiving covered assistance
    (A) Beyond the first tier if specifically designated to receive 
such assistance by a U.S. government agency; or
    (B) In the form of a scholarship, fellowship, or participant 
training, except certain recipients funded through a multilateral 
institution or international organization, as provided in 
Sec. 140.7(c); and
    (b)(1) That is located in or providing covered assistance within a 
covered country or within any other country, or portion thereof, that 
the Secretary of State or the Secretary's designee may at any time 
determine should be treated, in order to fulfill the purpose of this 
part, as if it were a covered country; or
    (2) As to which the agency providing assistance or any other 
interested agency has reasonable grounds to suspect current or past 
involvement in drug trafficking or conviction of a narcotics offense, 
regardless of whether the assistance is provided within a covered 
country.

    Examples: 
    (1) Under a $500,000 bilateral grant agreement with the Agency 
for International Development providing covered assistance, Ministry 
Y of Government A, the government of a covered country, enters into 
a $150,000 contract with Corporation X. Ministry Y is a covered 
entity. However, Corporation X is not a covered entity because the 
contract is not a direct contract with an agency of the United 
States.
    (2) Under a $1,000,000 grant from the Department of State 
providing covered assistance, Corporation B makes a $120,000 
subgrant to University Y for the training of 12 individuals. If 
Corporation B is located in or providing assistance within a covered 
country, it is a covered entity and the 12 individuals receiving 
participant training are covered individuals. University Y is not a 
covered entity.
    (3) University C, which is not located in a covered country, 
receives a $1 million regional assistance research project grant 
from the Agency for International development, $80,000 of which is 
provided for research in covered countries. University C is not a 
covered entity. (However, if $100,000 or more were provided for 
research in a covered country or countries, or if University C were 
located in a covered country, then University C would be a covered 
entity.)

Subpart C--Enforcement


Sec. 140.5  Overview.

    This subpart sets forth the enforcement procedures applicable 
pursuant to Sec. 140.4 to the various types of covered individuals and 
entities with respect to covered assistance. Section 140.6 establishes 
the procedures applicable to foreign government entities, including any 
such entity that is covered by the definition of a ``foreign state'' 
set forth in the Foreign Sovereign Immunities Act, 28 U.S.C. Sec. 
1603(a). Section 140.7 establishes the procedures applicable to 
multilateral institutions and international organizations. Section 
140.8 establishes the procedures applicable to recipients of 
scholarships and fellowships and participant trainees. Section 140.9 
establishes the procedures applicable to non-governmental entities. 
Section 140.10 sets forth additional procedures applicable to 
intermediate credit institutions. Sections 140.11 through 140.14 
contain general provisions related to the enforcement process.


Sec. 140.6  Foreign government entities.

    (a) Determination Procedures. (1) The Country Narcotics Coordinator 
shall be responsible for establishing a system for reviewing available 
information regarding narcotics offense convictions and drug 
trafficking of proposed assistance recipients under this section and, 
except under the circumstances described in Sec. 140.6(a)(6), 
determining whether a proposed recipient is to be denied such 
assistance or other measures are to be taken as a result of the 
application of FAA Section 487.
    (2) Prior to providing covered assistance to or through a proposed 
recipient, the agency providing the assistance shall provide the 
Country Narcotics Coordinator in the country in which the proposed 
recipient is located or, as appropriate, where assistance is to be 
provided, the information specified in Sec. 140.6(a)(3) in order that 
the Country Narcotics Coordinator may carry out his or her 
responsibilities under this part.
    (3) In each case, the agency proposing the assistance shall provide 
to the Country Narcotics Coordinator the name of each key individual 
within the recipient entity who may be expected to control or benefit 
from assistance as well as other relevant identifying information 
(e.g., address, date of birth) that is readily available. If a question 
arises concerning who should be included within the group of key 
individuals of an entity, the agency providing the assistance shall 
consult with the Country Narcotics Coordinator, and the decision shall 
be made by the Country Narcotics Coordinator. If the agency proposing 
the assistance disagrees with the Country Narcotics Coordinator's 
decision regarding who should be included within the group of key 
individuals, the agency may request that the decision be reviewed by 
the Assistant Secretary of State for International Narcotics and Law 
Enforcement Affairs in consultation with other appropriate bureaus and 
agencies. Any such review undertaken by the Assistant Secretary of 
State for International Narcotics and Law Enforcement Affairs shall be 
completed expeditiously.
    (4) Within fourteen calendar days after receiving the name of a 
proposed recipient and other relevant information, the Country 
Narcotics Coordinator shall determine whether any available information 
may warrant withholding assistance or taking other measures under this 
part, based on the

[[Page 36576]]

criteria set forth in Sec. 140.6(b). If, during that period, the 
Country Narcotics Coordinator determines that available information 
does not so indicate, he or she shall notify the proposing agency that 
the assistance may be provided to the proposed recipient.
    (5) If, during the initial fourteen-day period, the Country 
Narcotics Coordinator determines that information exists that may 
warrant withholding assistance or taking other measures under this 
part, then the Country Narcotics Coordinator shall have another 
fourteen calendar days to make a final determination whether the 
assistance shall be provided or withheld or such other measures taken.
    (6) A decision to withhold assistance or to take other measures 
based on information or allegations that a key individual who is a 
senior government official of the host nation has been convicted of a 
narcotics offense or has been engaged in drug trafficking shall be made 
by the Assistant Secretary of State for International Narcotics and Law 
Enforcement Affairs, or by a higher ranking official of the Department 
of State, in consultation with other appropriate bureaus and agencies. 
For the purpose of this part, ``senior government official'' includes 
host nation officials at or above the vice minister level, heads of 
host nation law enforcement agencies, and general or flag officers of 
the host nation armed forces.
    (b) Criteria to be Applied. (1) A decision to withhold assistance 
or take other measures shall be based on knowledge or reason to believe 
that the proposed recipient, within the past ten years, has:
    (i) Been convicted of a narcotics offense as defined in this part; 
or
    (ii) Been engaged in drug trafficking, regardless of whether there 
has been a conviction.
    (2) Factors that may support a decision to withhold assistance or 
take other measures based on reason to believe that the proposed 
recipient has been engaged in drug trafficking activities within the 
past ten years when there has been no conviction of such an offense may 
include, but are not limited to, the following:
    (i) Admission of participation in such activities;
    (ii) A long record of arrests for drug trafficking activities with 
an unexplained failure to prosecute by the local government;
    (iii) Adequate reliable information indicating involvement in drug 
trafficking.
    (3) If the Country Narcotics Coordinator knows or has reason to 
believe that a key individual (as described in Sec. 140.6(a)(3)) within 
a proposed recipient entity has been convicted of a narcotics offense 
or has been engaged in drug trafficking under the terms of this part, 
the Country Narcotics Coordinator must then decide whether withholding 
assistance from the entity or taking other measures to structure the 
provision of assistance to meet the requirements of section 487 is 
warranted. This decision shall be made in consultation with the agency 
proposing the assistance and other appropriate bureaus and agencies. In 
making this determination, the Country Narcotics Coordinator shall take 
into account:
    (i) The extent to which such individual would have control over 
assistance received;
    (ii) The extent to which such individual could benefit personally 
from the assistance;
    (iii) Whether such individual has acted alone or in collaboration 
with others associated with the entity;
    (iv) The degree to which financial or other resources of the entity 
itself have been used to support drug trafficking; and
    (v) Whether the provision of assistance to the entity can be 
structured in such a way as to exclude from the effective control or 
benefit of the assistance any key individuals with respect to whom a 
negative determination has been made.
    (c) Violations Identified Subsequent to Obligation. The foregoing 
procedures provide for a determination before funds are obligated. If, 
however, subsequent to an obligation of funds an assistance recipient 
or a key individual of such recipient is found to have been convicted 
of a narcotics offense or to have been engaged in drug trafficking 
(e.g., the head of a recipient entity changes during the course of an 
activity and the new head is found to have been engaged in drug 
trafficking), appropriate action should be taken, including, if 
necessary, termination of the assistance. Agreements shall be written 
to permit termination of assistance in such circumstances.


Sec. 140.7  Multilateral institutions and international organizations.

    Assistance provided to or through multilateral institutions or 
international organizations is subject to this part as follows:
    (a) Where the government agency providing assistance has reasonable 
grounds to suspect that a recipient multilateral institution or 
international organization may be or may have been involved in drug 
trafficking, the provisions of Sec. 140.6 shall apply.
    (b) Where the government agency providing assistance designates the 
recipient of assistance from the multilateral institution or 
international organization and the designated recipient is a covered 
individual or entity, the provisions of this part shall apply as if the 
assistance were provided directly to the designated recipient.
    (c) Where the government agency providing assistance does not 
designate the recipient of assistance from the multilateral institution 
or international organization, this part do not apply, other than as 
provided in paragraph (a) of this section, except that the agency's 
agreement with the multilateral institution or international 
organization shall stipulate that such entity is to make reasonable 
efforts, as necessary, to ensure that the assistance is not diverted in 
support of drug trafficking.

    Example: 
    The State Department provides $600,000 to the United Nations for 
the United Nations Drug Control Program, specifically designating 
that Government D of a covered country receive $150,000 and 
Corporation E receive $60,000 for training programs in a covered 
country. Individuals who will receive training are not specifically 
designated by the State Department. The United Nations is a covered 
entity based on Sec. 140.4(a)(1); Government D is a covered entity 
based on Secs. 140.4(b) and 140.7(b); Corporation E is not a covered 
entity under Secs. 140.4(b) and 140.7(b) because it has been 
designated to receive less than $100,000 in assistance 
(Sec. 140.3(c)(2)). Participant trainees are not covered individuals 
because they fall under the exception contained in Sec. 140.7(c) 
(see also Sec. 140.4(a)(2)).


Sec. 140.8  Recipients of scholarships, fellowships, and participant 
training.

    (a) Procedures. Individuals who are located in a covered country 
and who are proposed recipients of scholarships, fellowships, or 
participant training, except those falling under the exception 
contained in Sec. 140.7(c), are subject to the review procedures, 
criteria, and procedures concerning violations identified subsequent to 
obligation of funds set forth in Sec. 140.6. Such review of recipient 
individuals is in addition to the provisions applicable to the 
recipient entity providing the assistance.
    (b) Certifications. Individuals who are located in a covered 
country and who are proposed recipients of scholarships, fellowships, 
or participant training shall also be required to certify prior to 
approval that, within the last ten years, they have not been convicted 
of a narcotics offense, have not been engaged in drug trafficking, and 
have not knowingly assisted, abetted, conspired,

[[Page 36577]]

or colluded with others in drug trafficking. False certification may 
subject the assistance recipient to U.S. criminal prosecution under 18 
U.S.C. Sec. 1001 and to withdrawal of assistance under this part.


Sec. 140.9  Other non-governmental entities and individuals.

    (a) Procedures. Section 140.9 applies to private voluntary 
agencies, educational institutions, for-profit firms, other non-
governmental entities and private individuals. A non-governmental 
entity that is not organized under the laws of the United States shall 
be subject to the review procedures and criteria set forth in 
Sec. 140.6(a) and (b). A non-governmental entity that is organized 
under the laws of the United States shall not be subject to such review 
procedures and criteria. However, an agency providing assistance shall 
follow such review procedures and criteria, as modified by section 
Sec. 140.14, if the agency has reasonable grounds to suspect that a 
proposed U.S. non-governmental entity or a key individual of such 
entity may be or may have been involved in drug trafficking or may have 
been convicted of a narcotics offense. Procedures set forth in 
Sec. 140.6(c) concerning violations identified subsequent to obligation 
shall apply to both U.S. and foreign non-governmental entities.

    Examples:
    (1) A $100,000 grant to a covered U.S. university for 
participant training would not be subject to the review procedures 
and criteria in Sec. 140.6(a) and (b). However, a proposed 
participant would be subject to the review procedures and criteria 
in Sec. 140.6(a) and (b) as part of the agency's approval process.
    (2) A $100,000 grant to a covered foreign private voluntary 
agency for participant training would be subject to the review 
procedures and criteria in Sec. 140.6(a) and (b). In addition, each 
proposed participant would be subject to the review procedures and 
criteria in Sec. 140.6(a) and (b) as part of the agency's approval 
process.

    (b) Refunds. A clause shall be included in grants, contracts, and 
other agreements with both U.S. and foreign non-governmental entities 
requiring that assistance provided to or through such an entity that is 
subsequently found to have been engaged in drug trafficking, as defined 
in this part, shall be subject to refund or recall.
    (c) Certifications. Prior to approval of covered assistance, key 
individuals (as described in Sec. 140.6(a)(3)) in both U.S. and foreign 
non-governmental entities shall be required to certify that, within the 
last ten years, they have not been convicted of a narcotics offense, 
have not been engaged in drug trafficking and have not knowingly 
assisted, abetted, conspired, or colluded with others in drug 
trafficking. False certification may subject the signatory to U.S. 
criminal prosecution under 18 U.S.C. Sec. 1001.


Sec. 140.10  Intermediate credit institutions.

    (a) Treatment as Non-Governmental Entity or as a Foreign Government 
Entity. Intermediate credit institutions (``ICIs'') shall be subject to 
either the procedures applicable to foreign government entities or 
those applicable to non-governmental entities, depending on the nature 
of the specific entity. The Assistant Secretary of State for 
International Narcotics and Law Enforcement Affairs or the Assistant 
Secretary's designee, in consultation with the agency proposing the 
assistance and other appropriate bureaus and agencies, shall determine 
(consistent with the definition of ``foreign state'' set forth in the 
Foreign Sovereign Immunities Act, 28 U.S.C. 1603(a) and made applicable 
by Sec. 140.5) whether the ICI will be treated as a non-governmental 
entity or a foreign government entity.
    (b) Refunds. In addition to measures required as a consequence of 
an ICI's treatment as a non-governmental entity or a foreign government 
entity, a clause shall be included in agreements with all ICIs 
requiring that any loan greater than $1,000 provided by the ICI to an 
individual or entity subsequently found to have been convicted of a 
narcotics offense or engaged in drug trafficking, as defined in this 
part, shall be subject to refund or recall.


Sec. 140.11  Minimum enforcement procedures.

    Sections 140.6 through 140.10 represent the minimum procedures that 
each agency providing assistance must apply in order to implement FAA 
Section 487. Under individual circumstances, however, additional 
measures may be appropriate. In those cases, agencies providing 
assistance are encouraged to take additional steps, as necessary, to 
ensure that the statutory restrictions are enforced.


Sec. 140.12  Interagency review procedures.

    If the agency proposing the assistance disagrees with a 
determination by the Country Narcotics Coordinator to withhold 
assistance or take other measures, the agency may request that the 
determination be reviewed by the Assistant Secretary of State for 
International Narcotics and Law Enforcement Affairs in coordination 
with other appropriate bureaus and agencies. Unless otherwise 
determined by the Assistant Secretary of State for International 
Narcotics and Law Enforcement Affairs, the assistance shall continue to 
be withheld pending resolution of the review.


Sec. 140.13  Notification to foreign entities and individuals.

    (a) Unless otherwise determined under Sec. 140.13(b), if a 
determination has been made that assistance to a foreign entity or 
individual is to be withheld, suspended, or terminated under this part, 
the agency administering such assistance shall so inform the affected 
entity or individual. Except as the agency administering such 
assistance, the Country Narcotics Coordinator, and the agency or 
agencies that are the source of information that formed the basis for 
withholding, suspending, or terminating assistance may otherwise agree, 
the entity or individual shall be notified solely of the statutory 
basis for withholding, suspending, or terminating assistance.
    (b) Before such notification, the Country Narcotics Coordinator 
shall be responsible for ascertaining, in coordination with the 
investigating agency, that notification would not interfere with an on-
going criminal investigation. If the investigating agency believes that 
there is a significant risk of such interference, the Country Narcotics 
Coordinator, in coordination with the investigating agency, shall 
determine the means of compliance with this statute that best minimizes 
such risk.


Sec. 140.14  Special procedures for U.S. entities and individuals.

    (a) If the Country Narcotics Coordinator makes a preliminary 
decision that evidence exists to justify withholding, suspending, or 
terminating assistance to a U.S. entity, U.S. citizen, or permanent 
U.S. resident, the matter shall be referred immediately to the 
Assistant Secretary of State for International Narcotics and Law 
Enforcement Affairs for appropriate action, to be taken in consultation 
with the agency proposing the assistance and the agency or agencies 
that provided information reviewed or relied upon in making the 
preliminary decision.
    (b) If a determination is made that assistance is to be withheld, 
suspended, or terminated under this part, the Assistant Secretary of 
State for International Narcotics and Law Enforcement Affairs, or the 
Assistant Secretary's designee, shall notify the affected U.S. entity, 
U.S. citizen, or permanent U.S. resident and provide such entity or 
individual with an opportunity to respond before action is taken. In no 
event, shall this part be interpreted to create a right to classified

[[Page 36578]]

information or law enforcement investigatory information by such entity 
or individual.

    Dated: May 31, 1998.
Madeleine K. Albright,
Secretary of State.
[FR Doc. 98-17870 Filed 7-6-98; 8:45 am]
BILLING CODE 4710-08-V