§ 374. Maintenance and operation of equipment

(a) The Secretary of Defense may, in accordance with other applicable law, make Department of Defense personnel available for the maintenance of equipment for Federal, State, and local civilian law enforcement officials, including equipment made available under section 372 of this title.

(b)

(1) Subject to paragraph (2) and in accordance with other applicable law, the Secretary of Defense may, upon request from the head of a Federal law enforcement agency, make Department of Defense personnel available to operate equipment (including equipment made available under section 372 of this title) with respect to—

(A) a criminal violation of a provision of law specified in paragraph (4)(A);

(B) assistance that such agency is authorized to furnish to a State, local, or foreign government which is involved in the enforcement of similar laws;

(C) a foreign or domestic counter-terrorism operation; or

(D) a rendition of a suspected terrorist from a foreign country to the United States to stand trial.

(2) Department of Defense personnel made available to a civilian law enforcement agency under this subsection may operate equipment for the following purposes:

(A) Detection, monitoring, and communication of the movement of air and sea traffic.

(B) Detection, monitoring, and communication of the movement of surface traffic outside of the geographic boundary of the United States and within the United States not to exceed 25 miles of the boundary if the initial detection occurred outside of the boundary.

(C) Aerial reconnaissance.

(D) Interception of vessels or aircraft detected outside the land area of the United States for the purposes of communicating with such vessels and aircraft to direct such vessels and aircraft to go to a location designated by appropriate civilian officials.

(E) Operation of equipment to facilitate communications in connection with law enforcement programs specified in paragraph (4)(A).

(F) Subject to joint approval by the Secretary of Defense and the Attorney General (and the Secretary of State in the case of a law enforcement operation outside of the land area of the United States)—

(i) the transportation of civilian law enforcement personnel along with any other civilian or military personnel who are supporting, or conducting, a joint operation with civilian law enforcement personnel;

(ii) the operation of a base of operations for civilian law enforcement and supporting personnel; and

(iii) the transportation of suspected terrorists from foreign countries to the United States for trial (so long as the requesting Federal law enforcement agency provides all security for such transportation and maintains custody over the suspect through the duration of the transportation).

(3) Department of Defense personnel made available to operate equipment for the purpose stated in paragraph (2)(D) may continue to operate such equipment into the land area of the United States in cases involving the pursuit of vessels or aircraft where the detection began outside such land area.

(4) In this subsection:

(A) The term “Federal law enforcement agency” means a Federal agency with jurisdiction to enforce any of the following:

(i) The Controlled Substances Act (21 U.S.C. 801 et seq.) or the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.).

(ii) Any of sections 274 through 278 of the Immigration and Nationality Act (8 U.S.C. 1324–1328).

(iii) A law relating to the arrival or departure of merchandise (as defined in section 401 of the Tariff Act of 1930 (19 U.S.C. 1401) into or out of the customs territory of the United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States) or any other territory or possession of the United States.

(iv) Chapter 705 of title 46.

(v) Any law, foreign or domestic, prohibiting terrorist activities.

(B) The term “land area of the United States” includes the land area of any territory, commonwealth, or possession of the United States.

(c) The Secretary of Defense may, in accordance with other applicable law, make Department of Defense personnel available to any Federal, State, or local civilian law enforcement agency to operate equipment for purposes other than described in subsection (b)(2) only to the extent that such support does not involve direct participation by such personnel in a civilian law enforcement operation unless such direct participation is otherwise authorized by law.

(Added Pub. L. 97–86, title IX, § 905(a)(1), Dec. 1, 1981, 95 Stat. 1115; amended Pub. L. 98–525, title XIV, § 1405(9), Oct. 19, 1984, 98 Stat. 2622; Pub. L. 99–570, title III, § 3056, Oct. 27, 1986, 100 Stat. 3207–77; Pub. L. 99–661, div. A, title XIII, § 1373(c), Nov. 14, 1986, 100 Stat. 4007; Pub. L. 100–418, title I, § 1214(a)(1), Aug. 23, 1988, 102 Stat. 1155; Pub. L. 100–456, div. A, title XI, § 1104(a), Sept. 29, 1988, 102 Stat. 2043; Pub. L. 101–189, div. A, title XII, §§ 1210, 1216(b), (c), Nov. 29, 1989, 103 Stat. 1566, 1569; Pub. L. 102–484, div. A, title X, § 1042, Oct. 23, 1992, 106 Stat. 2492; Pub. L. 105–277, div. B, title II, § 201, Oct. 21, 1998, 112 Stat. 2681–567; Pub. L. 106–65, div. A, title X, § 1066(a)(4), Oct. 5, 1999, 113 Stat. 770; Pub. L. 109–304, § 17(a)(1), Oct. 6, 2006, 120 Stat. 1706.)

References In Text

References in Text

The Controlled Substances Act, referred to in subsec. (b)(4)(A)(i), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242, as amended, which is classified principally to subchapter I (§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 801 of Title 21 and Tables.

The Controlled Substances Import and Export Act, referred to in subsec. (b)(4)(A)(i), is title III of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1285, as amended, which is classified principally to subchapter II (§ 951 et seq.) of chapter 13 of Title 21. For complete classification of the Act to the Code, see Short Title note set out under section 951 of Title 21 and Tables.

The Harmonized Tariff Schedule of the United States, referred to in subsec. (b)(4)(A)(iii), is not set out in the Code. See Publication of Harmonized Tariff Schedule note set out under section 1202 of Title 19, Customs Duties.

Amendments

Amendments

2006—Subsec. (b)(4)(A)(iv). Pub. L. 109–304 substituted “Chapter 705 of title 46” for “The Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.)”.

1999—Subsec. (b)(1)(C), (D). Pub. L. 106–65, § 1066(a)(4)(A), realigned margins.

Subsec. (b)(2)(F)(i). Pub. L. 106–65, § 1066(a)(4)(B), struck out semicolon after “law enforcement personnel;”.

1998—Subsec. (b)(1)(C), (D). Pub. L. 105–277, § 201(1), (2), added subpars. (C) and (D).

Subsec. (b)(2)(F)(i). Pub. L. 105–277, § 201(3), inserted “along with any other civilian or military personnel who are supporting, or conducting, a joint operation with civilian law enforcement personnel;” after “transportation of civilian law enforcement personnel” and struck out “and” at end.

Subsec. (b)(2)(F)(ii). Pub. L. 105–277, § 201(4)(A), inserted “and supporting” before “personnel”.

Subsec. (b)(2)(F)(iii). Pub. L. 105–277, § 201(4)(B), (C), added cl. (iii).

Subsec. (b)(4)(A). Pub. L. 105–277, § 201(5), substituted “a Federal agency” for “an agency” in introductory provisions.

Subsec. (b)(4)(A)(v). Pub. L. 105–277, § 201(6), added cl. (v).

1992—Subsec. (b)(2)(B) to (F). Pub. L. 102–484, § 1042(1), added subpar. (B) and redesignated former subpars. (B) to (E) as (C) to (F), respectively.

Subsec. (b)(3). Pub. L. 102–484, § 1042(2), substituted “paragraph (2)(D)” for “paragraph (2)(C)”.

1989—Subsec. (b)(2)(E). Pub. L. 101–189, § 1210, substituted “and the Attorney General (and the Secretary of State in the case of a law enforcement operation outside of the land area of the United States)” for “, the Attorney General, and the Secretary of State, in connection with a law enforcement operation outside the land area of the United States” in introductory provisions.

Subsec. (b)(4)(A)(iii). Pub. L. 101–189, § 1216(b), substituted “general note 2 of the Harmonized Tariff Schedule of the United States” for “general headnote 2 of the Tariff Schedules of the United States”.

Subsec. (c). Pub. L. 101–189, § 1216(c), substituted “subsection (b)(2)” for “paragraph (2)”.

1988—Pub. L. 100–456 substituted “Maintenance and operation of equipment” for “Assistance by Department of Defense personnel” in section catchline, and amended text generally, revising and restating former subsecs. (a) to (d) as subsecs. (a) to (c).

Subsec. (a)(3). Pub. L. 100–418, which directed substitution of “general note 2 of the Harmonized Tariff Schedule of the United States” for “general headnote 2 of the Tariff Schedules of the United States”, could not be executed because of intervening general amendment by Pub. L. 100–456.

1986—Subsec. (a). Pub. L. 99–570, § 3056(a), inserted provision at end relating to assistance that such agency is authorized to furnish to any foreign government which is involved in the enforcement of similar laws.

Subsec. (c). Pub. L. 99–570, § 3056(b), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows:

“(1) In an emergency circumstance, equipment operated by or with the assistance of personnel assigned under subsection (a) may be used outside the land area of the United States (or any territory or possession of the United States) as a base of operations by Federal law enforcement officials to facilitate the enforcement of a law listed in subsection (a) and to transport such law enforcement officials in connection with such operations, if—

“(A) equipment operated by or with the assistance of personnel assigned under subsection (a) is not used to interdict or to interrupt the passage of vessels or aircraft; and

“(B) the Secretary of Defense and the Attorney General jointly determine that an emergency circumstance exists.

“(2) For purposes of this subsection, an emergency circumstance may be determined to exist only when—

“(A) the size or scope of the suspected criminal activity in a given situation poses a serious threat to the interests of the United States; and

“(B) enforcement of a law listed in subsection (a) would be seriously impaired if the assistance described in this subsection were not provided.”

Subsec. (d). Pub. L. 99–661 added subsec. (d).

1984—Subsec. (a)(3). Pub. L. 98–525 struck out “(19 U.S.C. 1202)” after “Tariff Schedules of the United States”.

Effective Date Of Amendment

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–418 effective Jan. 1, 1989, and applicable with respect to articles entered on or after such date, see section 1217(b)(1) of Pub. L. 100–418, set out as an Effective Date note under section 3001 of Title 19, Customs Duties.

Miscellaneous

Funds for Young Marines Program

Pub. L. 110–116, div. A, title VIII, § 8030, Nov. 13, 2007, 121 Stat. 1321, provided that: “Notwithstanding any other provision of law, funds available during the current fiscal year and hereafter for ‘Drug Interdiction and Counter-Drug Activities, Defense’ may be obligated for the Young Marines program.”

Similar provisions were contained in the following prior appropriation acts:

Pub. L. 109–289, div. A, title VIII, § 8028, Sept. 29, 2006, 120 Stat. 1279.

Pub. L. 109–148, div. A, title VIII, § 8033, Dec. 30, 2005, 119 Stat. 2705.

Pub. L. 108–287, title VIII, § 8037, Aug. 5, 2004, 118 Stat. 978.

Pub. L. 108–87, title VIII, § 8037, Sept. 30, 2003, 117 Stat. 1080.

Pub. L. 107–248, title VIII, § 8037, Oct. 23, 2002, 116 Stat. 1544.

Pub. L. 107–117, div. A, title VIII, § 8040, Jan. 10, 2002, 115 Stat. 2256.

Pub. L. 106–259, title VIII, § 8040, Aug. 9, 2000, 114 Stat. 683.

Pub. L. 106–79, title VIII, § 8043, Oct. 25, 1999, 113 Stat. 1240.

Pub. L. 105–262, title VIII, § 8043, Oct. 17, 1998, 112 Stat. 2307.

Pub. L. 105–56, title VIII, § 8047, Oct. 8, 1997, 111 Stat. 1231.

Pub. L. 104–208, div. A, title I, § 101(b) [title VIII, § 8048], Sept. 30, 1996, 110 Stat. 3009–71, 3009–99.

Counter-Drug Activities; Conditions on Transfers of Funds and Detailing Personnel; Relationship to Other Law

Pub. L. 103–337, div. A, title X, § 1011(b)–(d), Oct. 5, 1994, 108 Stat. 2836, provided that:

“(b)Condition on Transfer of Funds.—Funds appropriated for the Department of Defense may not be transferred to a National Drug Control Program agency account except to the extent provided in a law that specifically states—

“(1) the amount authorized to be transferred;

“(2) the account from which such amount is authorized to be transferred; and

“(3) the account to which such amount is authorized to be transferred.

“(c)Condition on Detailing Personnel.—Personnel of the Department of Defense may not be detailed to another department or agency in order to implement the National Drug Control Strategy unless the Secretary of Defense certifies to Congress that the detail of such personnel is in the national security interest of the United States.

“(d)Relationship to Other Law.—A provision of law may not be construed as modifying or superseding the provisions of subsection (b) or (c) unless that provision of law—

“(1) specifically refers to this section; and

“(2) specifically states that such provision of law modifies or supersedes the provisions of subsection (b) or (c), as the case may be.”

Pub. L. 113–76, div. C, title VIII, § 8045(a), Jan. 17, 2014, 128 Stat. 115, provided that: “None of the funds available to the Department of Defense for any fiscal year for drug interdiction or counter-drug activities may be transferred to any other department or agency of the United States except as specifically provided in an appropriations law.”

Similar provisions were contained in the following prior appropriation acts:

Pub. L. 113–6, div. C, title VIII, § 8045(a), Mar. 26, 2013, 127 Stat. 308.

Pub. L. 112–74, div. A, title VIII, § 8045(a), Dec. 23, 2011, 125 Stat. 817.

Pub. L. 112–10, div. A, title VIII, § 8045(a), Apr. 15, 2011, 125 Stat. 67.

Pub. L. 111–118, div. A, title VIII, § 8047(a), Dec. 19, 2009, 123 Stat. 3439.

Pub. L. 110–329, div. C, title VIII, § 8047(a), Sept. 30, 2008, 122 Stat. 3631.

Pub. L. 110–116, div. A, title VIII, § 8048(a), Nov. 13, 2007, 121 Stat. 1325.

Pub. L. 109–289, div. A, title VIII, § 8045(a), Sept. 29, 2006, 120 Stat. 1283.

Pub. L. 109–148, div. A, title VIII, § 8052(a), Dec. 30, 2005, 119 Stat. 2709.

Pub. L. 108–287, title VIII, § 8057(a), Aug. 5, 2004, 118 Stat. 983.

Pub. L. 108–87, title VIII, § 8057(a), Sept. 30, 2003, 117 Stat. 1085.

Pub. L. 107–248, title VIII, § 8058(a), Oct. 23, 2002, 116 Stat. 1549.

Pub. L. 107–117, div. A, title VIII, § 8063(a), Jan. 10, 2002, 115 Stat. 2261.

Pub. L. 106–259, title VIII, § 8062(a), Aug. 9, 2000, 114 Stat. 688.

Pub. L. 106–79, title VIII, § 8065(a), Oct. 25, 1999, 113 Stat. 1244.

Pub. L. 105–262, title VIII, § 8065(a), Oct. 17, 1998, 112 Stat. 2311.

Pub. L. 105–56, title VIII, § 8071(a), Oct. 8, 1997, 111 Stat. 1235.

Pub. L. 104–208, div. A, title I, § 101(b) [title VIII, § 8080(a)], Sept. 30, 1996, 110 Stat. 3009–71, 3009–104.

Pub. L. 104–61, title VIII, § 8096(a), Dec. 1, 1995, 109 Stat. 671.

Pub. L. 103–335, title VIII, § 8154(a), Sept. 30, 1994, 108 Stat. 2658.

Additional Support for Counter-Drug Activities

Pub. L. 101–510, div. A, title X, § 1004, Nov. 5, 1990, 104 Stat. 1629, as amended by Pub. L. 102–190, div. A, title X, § 1088(a), Dec. 5, 1991, 105 Stat. 1484; Pub. L. 102–484, div. A, title X, § 1041(a)–(d)(1), Oct. 23, 1992, 106 Stat. 2491; Pub. L. 103–160, div. A, title XI, § 1121(a), (b), Nov. 30, 1993, 107 Stat. 1753; Pub. L. 103–337, div. A, title X, § 1011(a), Oct. 5, 1994, 108 Stat. 2836; Pub. L. 105–261, div. A, title X, § 1021, Oct. 17, 1998, 112 Stat. 2120; Pub. L. 107–107, div. A, title X, § 1021, Dec. 28, 2001, 115 Stat. 1212; Pub. L. 109–364, div. A, title X, § 1021, Oct. 17, 2006, 120 Stat. 2382; Pub. L. 111–383, div. A, title X, § 1015(a), Jan. 7, 2011, 124 Stat. 4347; Pub. L. 112–81, div. A, title X, § 1005, Dec. 31, 2011, 125 Stat. 1556, provided that:

“(a)Support to Other Agencies.—During fiscal years 2012 through 2014, the Secretary of Defense may provide support for the counter-drug activities of any other department or agency of the Federal Government or of any State, local, tribal, or foreign law enforcement agency for any of the purposes set forth in subsection (b) if such support is requested—

“(1) by the official who has responsibility for the counter-drug activities of the department or agency of the Federal Government, in the case of support for other departments or agencies of the Federal Government;

“(2) by the appropriate official of a State, local, or tribal government, in the case of support for State, local, or tribal law enforcement agencies; or

“(3) by an appropriate official of a department or agency of the Federal Government that has counter-drug responsibilities, in the case of support for foreign law enforcement agencies.

“(b)Types of Support.—The purposes for which the Secretary of Defense may provide support under subsection (a) are the following:

“(1) The maintenance and repair of equipment that has been made available to any department or agency of the Federal Government or to any State, local, or tribal government by the Department of Defense for the purposes of—

“(A) preserving the potential future utility of such equipment for the Department of Defense; and

“(B) upgrading such equipment to ensure compatibility of that equipment with other equipment used by the Department of Defense.

“(2) The maintenance, repair, or upgrading of equipment (including computer software), other than equipment referred to in paragraph (1) for the purpose of—

“(A) ensuring that the equipment being maintained or repaired is compatible with equipment used by the Department of Defense; and

“(B) upgrading such equipment to ensure the compatibility of that equipment with equipment used by the Department of Defense.

“(3) The transportation of personnel of the United States and foreign countries (including per diem expenses associated with such transportation), and the transportation of supplies and equipment, for the purpose of facilitating counter-drug activities within or outside the United States.

“(4) The establishment (including an unspecified minor military construction project) and operation of bases of operations or training facilities for the purpose of facilitating counter-drug activities of the Department of Defense or any Federal, State, local, or tribal law enforcement agency within or outside the United States or for the purpose of facilitating counter-drug activities of a foreign law enforcement agency outside the United States.

“(5) Counter-drug related training of law enforcement personnel of the Federal Government, of State, local, and tribal governments, and of foreign countries, including associated support expenses for trainees and the provision of materials necessary to carry out such training.

“(6) The detection, monitoring, and communication of the movement of—

“(A) air and sea traffic within 25 miles of and outside the geographic boundaries of the United States; and

“(B) surface traffic outside the geographic boundary of the United States and within the United States not to exceed 25 miles of the boundary if the initial detection occurred outside of the boundary.

“(7) Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.

“(8) Establishment of command, control, communications, and computer networks for improved integration of law enforcement, active military, and National Guard activities.

“(9) The provision of linguist and intelligence analysis services.

“(10) Aerial and ground reconnaissance.

“(c)Limitation on Counter-Drug Requirements.—The Secretary of Defense may not limit the requirements for which support may be provided under subsection (a) only to critical, emergent, or unanticipated requirements.

“(d)Contract Authority.—In carrying out subsection (a), the Secretary of Defense may acquire services or equipment by contract for support provided under that subsection if the Department of Defense would normally acquire such services or equipment by contract for the purpose of conducting a similar activity for the Department of Defense.

“(e)Limited Waiver of Prohibition.—Notwithstanding section 376 of title 10, United States Code, the Secretary of Defense may provide support pursuant to subsection (a) in any case in which the Secretary determines that the provision of such support would adversely affect the military preparedness of the United States in the short term if the Secretary determines that the importance of providing such support outweighs such short-term adverse effect.

“(f)Conduct of Training or Operation To Aid Civilian Agencies.—In providing support pursuant to subsection (a), the Secretary of Defense may plan and execute otherwise valid military training or operations (including training exercises undertaken pursuant to section 1206(a) of the National Defense Authorization Act for Fiscal Years 1990 and 1991 (Public Law 101–189; 103 Stat. 1564 [10 U.S.C. 124 note])) for the purpose of aiding civilian law enforcement agencies.

“(g)Relationship to Other Laws.—

(1) The authority provided in this section for the support of counter-drug activities by the Department of Defense is in addition to, and except as provided in paragraph (2), not subject to the requirements of chapter 18 of title 10, United States Code.

“(2) Support under this section shall be subject to the provisions of section 375 and, except as provided in subsection (e), section 376 of title 10, United States Code.

“(h)Congressional Notification of Facilities Projects.—

(1) When a decision is made to carry out a military construction project described in paragraph (2), the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of Senate and House of Representatives] written notice of the decision, including the justification for the project and the estimated cost of the project. The project may be commenced only after the end of the 21-day period beginning on the date on which the written notice is received by Congress.

“(2) Paragraph (1) applies to an unspecified minor military construction project that—

“(A) is intended for the construction, modification, or repair of any facility for the purposes set forth in subsection (b)(4); and

“(B) has an estimated cost of more than $500,000.

“(3) This subsection may not be construed as an authorization for the use of funds for any military construction project that would exceed the approved cost limitations of an unspecified minor military construction project under section 2805(a)(2) of title 10, United States Code.

“(i)Definitions Relating to Tribal Governments.—In this section:

“(1) The term ‘Indian tribe’ means a federally recognized Indian tribe.

“(2) The term ‘tribal government’ means the governing body of an Indian tribe, the status of whose land is ‘Indian country’ as defined in section 1151 of title 18, United States Code, or held in trust by the United States for the benefit of the Indian tribe.

“(3) The term ‘tribal law enforcement agency’ means the law enforcement agency of a tribal government.”

[Pub. L. 111–383, div. A, title X, § 1015(b), Jan. 7, 2011, 124 Stat. 4348, provided that: “The amendments made by subsection (a) [amending section 1004 of Pub. L. 101–510, set out above] shall take effect on the date of the enactment of this Act [Jan. 7, 2011], and shall apply with respect to facilities projects for which a decision is made to be carried out on or after that date.” ]

Communications Network

Pub. L. 100–456, div. A, title XI, § 1103, Sept. 29, 1988, 102 Stat. 2042, related to integration of United States assets dedicated to interdiction of illegal drugs into an effective communications network, prior to repeal by Pub. L. 101–189, div. A, title XII, § 1204(b), Nov. 29, 1989, 103 Stat. 1564. See section 1204(a) of Pub. L. 101–189 set out as a note under section 124 of this title.

Enhanced Drug Interdiction and Enforcement Role for National Guard

Pub. L. 100–456, div. A, title XI, § 1105, Sept. 29, 1988, 102 Stat. 2047, related to funding and training of National Guard for purpose of drug interdiction and enforcement operations and for operation and maintenance of equipment and facilities for such purpose, prior to repeal by Pub. L. 101–189, div. A, title XII, § 1207(b), Nov. 29, 1989, 103 Stat. 1566. See section 112 of Title 32, National Guard.

Additional Department of Defense Drug Law Enforcement Assistance

Pub. L. 99–570, title III, § 3057, Oct. 27, 1986, 100 Stat. 3207–77, provided that the Secretary of Defense was to submit to Congress, within 90 days after Oct. 27, 1986, a list of all forms of assistance that were to be made available by the Department of Defense to civilian drug law enforcement and drug interdiction agencies and a plan for promptly lending equipment and rendering drug interdiction-related assistance included on the list, provided for congressional approval of the list and plan, required the Secretary to convene a conference of the heads of Government agencies with jurisdiction over drug law enforcement to determine the appropriate distribution of the assets or other assistance to be made available by the Department to such agencies, and provided for monitoring of the Department’s performance by the General Accounting Office.