Two codified narcotics control certification procedures are available under 22 U.S.C. 2291j and 22 U.S.C. 2291j-1. Beginning 1986 (P.L. 99-570), Congress required that the President determine and certify to Congress that major illicit drug producing or drug transit countries (i.e., drug majors) were “fully cooperating” with the U.S. government to combat the illegal drug trade. Prior to the President’s determination and certification, 22 U.S.C. 2291j requires that 50% of certain bilateral assistance be withheld and that the U.S. government oppose multilateral development assistance to the drug majors. If the President could not determine and certify a drug major as having met the “fully cooperating” requirement (or if Congress enacts a joint resolution disapproving of a Presidential certification), then one of two options exist:

U.S. Denial of Assistance: 100% of bilateral assistance is prohibited from being obligated and the U.S. government continues to oppose multilateral development assistance until the country is eligible for certification; or

Continuance of All or a Portion of Aid for National Interest Reasons: Aid continues, not because the country qualifies for certification, but because the President determines that “the vital national interests of the United States require that the assistance withheld ... be provided.” In this scenario, multilateral development assistance could also be supported.

While not eliminating the certification procedures under 22 U.S.C. 2291j, the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002 (P.L. 107-115), temporarily allowed for the suspension of the prior certification procedures and their replacement with a new set of procedures. The Foreign Relations Authorization Act, Fiscal Year 2003 (P.L. 107-228), made permanent the modified certification requirement under http://www.gpo.gov/fdsys/pkg/PLAW-107publ115/pdf/PLAW-107publ115.pdf">P.L. 107-115, and this new requirement became codified under 22 U.S.C. 2291j-1].

In place of 22 U.S.C. 2291j, 22 U.S.C. 2291j-1 required the President to designate and withhold assistance from only the worst offending drug majors—those that were determined by the President as having “failed demonstrably” to make substantial efforts to combat illicit drugs—and it eliminated the requirement to withhold initially 50% of bilateral aid prior to the President’s designation and certification to Congress.

The change in standards from whether a country had “cooperated fully” to whether it had “failed demonstrably” effectively shifted the “burden of proof to an assumption that foreign nations were cooperating with the United States and had to be proved otherwise to trigger the restrictions” in foreign assistance. For those countries that were designated as having failed demonstrably, the same two options remained as under 22 U.S.C. 2291j: (1) 100% denial of U.S. bilateral and multilateral assistance or (2) continuance of all or a portion of aid for national interest reasons.