Narcotics Certification of Drug Producing Trafficking Nations: Questions and Answers

Narcotics Certification of Drug Producing Trafficking Nations: Questions and Answers

Order Code 98-159 F
Updated March 27, 2000
CRS Report for Congress
Received through the CRS Web
Narcotics Certification of Drug Producing and
Trafficking Nations: Questions and Answers
Raphael F. Perl
Specialist in International Affairs
Foreign Affairs, Defense, and Trade Division
Summary
An important element of U.S. international narcotics control strategy involves the
threat of, or application of, sanctions against major illicit drug producing or trafficking
nations. These range from suspension of U.S. foreign assistance and preferential trade
benefits to curtailment of air transportation. Sections 489 and 490 of the Foreign
Assistance Act of 1961, as amended, require the President to submit to Congress by
March 1 each year a list of major illicit drug producing and transiting countries that he
has certified as fully cooperative and therefore fully eligible to receive U.S. foreign aid,
without discretionary imposition of any concomitant economic and trade sanctions. This
sets in motion a 30-calendar-day review process in which Congress can disapprove the
President's certification and stop U.S. foreign aid and other benefits from going to
specific countries. This report provides answers to frequently asked questions about the
certification process and the requirements for Congress to disapprove a drug certification
by the President.
What Is the Drug Certification Process?
Sections 498 and 490 of the Foreign Assistance Act of 1961, as amended, require the
President to submit to Congress by March 1 each year a list of major illicit drug producing
and transiting countries that he has certified as fully cooperative and therefore eligible to
continue to receive U.S. foreign aid without discretionary imposition of any concomitant
economic and trade sanctions. This sets in motion a 30-calendar-day review process in
which Congress can disapprove the President's certification and stop U.S. foreign aid and
other benefits from going to specific countries.
Certification may be granted when a major illicit drug producing or transiting country
has "cooperated fully" with U.S. narcotics reduction goals, or has taken "adequate steps
on its own" to achieve full compliance with the goals and objectives established by the
1988 U.N. anti-drug trafficking convention. A country not qualifying on this basis may
escape imposition of sanctions if the President certifies that U.S. "vital national interests"
justify waiver of sanctions on that country.
Congressional Research Service ˜ The Library of Congress

CRS-2
What Sanctions Are Mandatory?
If decertified, the following mandatory sanctions would apply to a nation:
! Suspension of all remaining U.S. assistance for the current fiscal year
(except for anti-narcotics and humanitarian assistance) [N.B. withholding
of 50% of assistance for the current fiscal year is required.]; Total
suspension of U.S. assistance for subsequent fiscal years (unless the
country is recertified in the interim) ;
! Requirement that the United States vote against loans to the country in
the multilateral development banks.
What Sanctions Are Discretionary?
In the event of decertification, discretionary sanctions available to the President under
section 802 of the Trade Act of 1974 include:
! Denial of preferential tariff treatment to a country's exports under the
Generalized System of Preferences (GSP), the Caribbean Basin Economic
Recovery Act, Andean Trade Preference Act, and any other law providing
preferential tariff treatment;Duty increases of up to 50% on the value of
a country's export items which are currently duty free;
! Duty increases of up to 50% on the value of a country's export items
which are currently subject to duty;Curtailment of air transportation and
traffic between the United States and the non-certified country;
! Withdrawal of U.S. participation in any preferential pre-clearance customs
arrangements with the non-certified country.
What Qualifies a Country for the “Majors” List?
Section 490(h) of the Foreign Assistance Act of 1961 requires the President to submit
to Congress, by November 1 of each year, a list of countries he has determined to be
either: (1) major illicit drug producing countries or, (2) major drug transit countries.
Definitions provided by law allow an Administration substantial flexibility in determining
which nations qualify for drug transit status. In contrast, standards for a drug-producing
country offer little flexibility.
Major illicit drug producing countries are defined by law in Section 481 of the
1961 Act as cultivating or harvesting at least 1,000 hectares of opium poppy; 1,000
hectares of illicit coca; or 5,000 hectares of marijuana. In the case of marijuana, such
production must significantly affect the United States.
Major illicit drug transit countries are defined by a Section 481 standard which
permits subjectivity. Such a country, because of its transit activities, must be a significant
direct source of illicit drugs to the United States.
Information on major illicit drug producing and transit countries, as well as
information on major precursor chemical source countries and major drug money

CRS-3
laundering countries is then included in the State Department’s March 1, Annual
International Narcotics Control Strategy Report (INCSR).
What Does the 2000 Certification Report Include?
On February 29, 2000, President Clinton submitted to Congress his annual list of
major illicit drug producing and transiting countries eligible to receive U.S. foreign aid and
other economic and trade benefits. Certified as fully cooperating and deserving of U.S.
assistance are Bahamas, Bolivia, Brazil, China, Colombia, Dominican Republic, Ecuador,
Guatemala, Hong Kong, India, Jamaica, Laos, Mexico, Panama, Peru, Taiwan, Thailand,
Venezuela, and Vietnam. The President decertified and denied assistance to Afghanistan,
and Burma. Countries not fully cooperating but eligible for continued U.S. assistance
because such assistance is deemed in the U.S. national interest are Cambodia, Haiti ,
Nigeria and Paraguay. Changes from the 1999 certification are removal of Aruba and
Belize (both previously fully certified) from the list of countries subject to certification
Of the President’s determinations, his decision to certify Mexico has often been the
most contentious. Mexico has regularly been a focus of congressional attention and an
important focus of U.S. foreign narcopolicy. As early as 1988, a resolution to decertify
Mexico for lack of narcotics cooperation passed the Senate. On March 13, 1997, the
House passed (251-175) H.J.Res. 58 which would have delayed decertification of Mexico
by 90 days and blocked it entirely had the President failed to certify that Mexico had
moved forward on six narcotics-cooperation related issues. In floor debate on March 20,
1997, the Senate passed (94-5) the Coverdell-Feinstein amendment to H.J.Res. 58. The
amendment, instead of disapproving the President’s certification, would have required a
report by September 1, 1997, on Mexican efforts to strengthen the fight against trafficking
in 10 areas and U.S. efforts in three areas. President Clinton agreed to abide by the Senate
version. In 1998, resolutions of disapproval were introduced in both houses, but S.J. Res.
42 was defeated in the Senate and no floor action was taken in the House. [See: CRS
Report 98-174 and CRS Report RL30080 by K. Larry Storrs which are specifically
Mexico focused.]
Congress is also increasingly concerned over Administration determinations as to who
is, and who is not, on the “majors “ list. An area of contention for many in Congress has
been removal of Iran from the drug ”majors” list and his removal of Syria and Lebanon
from the list. In November 1997, to the dismay of many in Congress, the President notified
the Hill of his decision to remove Syria and Lebanon from the list. 24 Members of
Congress had signed a letter calling upon President Clinton to retain Syria on the list. In
the case of Iran, on February 3, 1998, 21 Members of Congress sent a letter to the
President protesting such anticipated action. A follow-up letter sent February 6, was
signed by 15 Members. Nevertheless, last year, the Administration removed Iran from the
list. Also, earlier in the year, Members of Congress sent a letter to the Secretary of State
asking the Administration whether North Korean drug trafficking activity warranted that
nation’s placement on the “majors” list. The March 1999 INCSR, which for the first time
includes a section on North Korea , expresses “profound concern” over reports of North
Korean drug trafficking activity and contains a pledge to continue to monitor any such
activity in the coming year and to add North Korea to the majors list should evidence
require.

CRS-4
In the case of Syria and Lebanon, the Administration argues that the definition of
major “drug transit” country does not apply because the impact of drugs transiting these
two nations does not substantially affect the United States. Moreover, the law does not
make major drug refining nations subject to sanctions— only crop producing (growing)
nations, and Syria appears to be growing less opium poppy though apparently refining
more heroin.
How Can Congress Disapprove a Presidential Determination of
Certification?
Congress has 30-calendar-days from receipt of the President's determination of
certification to enact a joint resolution disapproving the President's action. For 1998, the
deadline for congressional passage of a joint resolution of disapproval is expected to be
March 27, 1999. If the President vetoes such a joint resolution of disapproval, a two-thirds
enacting majority in each legislative chamber would be required for it to become law.
If Congress Were to Disapprove A Presidential Certification, Could the
President Avoid Imposition of Sanctions by Some Other General Waiver
Authority?
Yes. Special waiver authorities are available, but because certain political costs might
be involved, it is uncertain whether the President would exercise these waivers.
Section 614(a) of the Foreign Assistance Act of 1961 provides special authority for
the President to furnish assistance without regard to any provisions of the Act, if he
notifies Congress in writing and determines that to do so is important to the national
security interests of the United States. Sales, credits, and guarantees under the Arms
Export Control Act also may be provided if to do so is found by the President to be vital
to the national security interests of the United States. Section 614 of the Act does not
specifically authorize waivers of requirements for U.S. representatives to vote against
loans in the multilateral development banks.
Officials at the General Counsel's office at the Treasury Department are of the
preliminary opinion that section 614 waivers would not apply to requirements under
section 490(a)(2) that U.S. representatives in the multilateral development banks vote
against loans to the decertified country. If the President uses section 614 in contentious
circumstances, however, such use may result in: (1) Congress removing the authority, or
(2) actions by Congress in subsequent appropriations bills to deny, or limit assistance to
the country in question.
If Congress were to disapprove the President's certification of a major illicit drug
producing or transit country and override the presidential veto of such action, potential
subsequent attempts by the President to change his certification to one based on national
interests would apparently need to be implemented under recertification provisions of
section 490(f). This section provides that the President may submit a national interests
certification at any future time. This recertification becomes operable, however, only if
one of the two following conditions is met: (a) the President also certifies there has been
a fundamental change in government or change in conditions leading to the decertification;

CRS-5
or (b) in the absence of this additional certification regarding changes in government or
conditions, Congress enacts a joint resolution approving the national interests certification.
Has Congress Ever Overridden a Presidential Determination of
Certification?
No. However, many say a major strength of the certification process is the impact
it has on the Administration in shaping congressionally sensitive presidential
determinations before they are sent to Congress.
In the 100th Congress, a resolution disapproving certification of Panama (S.J.Res.
91) passed the Senate on April 3, 1987, but the House failed to consider it within the
required statutory time. As early as 1988, a resolution to decertify Mexico for lack of
narcotics cooperation passed the Senate. More recently, on March 13, 1997, the House
passed (251-175) H.J.Res. 58 which would have deferred decertification of Mexico if the
President reported that Mexico had moved forward on six narcotics-cooperation related
issues. In a related move, the Senate, on March 20, 1997, passed (94-5) the Coverdale-
Feinstein amendment to H.J.Res. 58 which required a report on Mexican and U.S. efforts
to strengthen drug control activity. The report was subsequently submitted.
In the Event of Decertification, Could Anti-Drug and Humanitarian
Assistance Continue?
Yes. Section 481(e)(4) of the Foreign Assistance Act of 1961 exempts narcotics
assistance, narcotics-related aid, disaster relief, food and medicine, as well as refugee
assistance from mandatory certification sanctions.
However, under what many see as a technical loophole in the law, narcotics-related
foreign military financing (FMF) is not exempted in the event of decertification. To
counter this perceived loophole, President Clinton, on August 16, 1997 signed a Section
614 “national interests” waiver to the Foreign Assistance Act permitting Foreign Military
Financing and other narcotics assistance to Colombia in the amount of $30.6 million. [
N.B. Assistance in the form of providing drawdown articles and services is generally not
considered “assistance” under the definitions of the 1961 Foreign Assistance Act. In the
case of Colombia, the President also signed a Section 506 (a)(2) waiver permitting DOD
drawdown articles and services to Colombia and other nations in the Western Hemisphere
on September 30, 1997.]
What is the Impact of the U.S. Voting Against Multilateral Development
Bank Loans to a Decertified Country?
It is unlikely that the World Bank (IBRD) and Multilateral Development Banks
MDBs) would terminate or reduce their levels of assistance to a country solely because
the United States voted against such loans. The United States is the single largest member
country in both categories of banks, but its 17.1% voting share in the World Bank and [to
cite one MDB example] its 34.1% share in the Inter-American Development Bank (IDB)
would not be sufficient to prevent lending. A majority (51% of the vote cast by a quorum
of members) is needed to approve such loans. It is likely that they will continue supporting
assistance to a nation, even if the United States opposes it. In the World Bank (IBRD),

CRS-6
other advanced industrial countries -- Japan, Canada, and the countries of the European
Union -- control about 40% of the vote. It is unlikely that they will oppose lending to a
nation simply because the United States opposes it. Developing countries control about
40% of the vote in the IBRD and are likely to support loans to a decertified nation
regardless of the U.S. view.
The U.S. Administration, however, might be able to persuade some countries to
oppose lending to a decertified country if it argues in a convincing manner, and especially
if "linkage" to other matters is established. U.S. arguments along this line will not be very
persuasive, however, if other countries believe the U.S. Administration is opposing
multilateral bank assistance to the nation in question because it is required to do so by law,
and not because of its own conviction that opposition to such loans is the right thing to do
and important to the United States.
It is unlikely that the United States will be able to persuade top management at the
World Bank or the MDBs to suspend action on any pending loan applications by a
decertified country if most other bank member countries support continued lending. The
United States has been chronically late in its contributions to the World Bank and other
multilateral banks in recent years. Bank management and other member countries may be
less willing than usual to accord the United States special influence over decisions where
they hold contrary views.

Note: This report incorporates material contained in CRS Report 97-320, Narcotics Certification
and Mexico, by Raphael Perl, Jonathan Sanford, and K. Larry Storrs.