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NOTES:


Source

(Pub. L. 96–72, § 5, Sept. 29, 1979, 93 Stat. 506; Pub. L. 99–64, title I, §§ 105(a)–(c)(1), (d)–(j), 106, 107, July 12, 1985, 99 Stat. 123–129; Pub. L. 100–418, title II, §§ 2413–2418(b), 2419, 2420 (a), 2421, 2422, 2446, Aug. 23, 1988, 102 Stat. 1347–1358, 1369.)

Prior Provisions

A prior section 2404, Pub. L. 91–184, § 5, Dec. 30, 1969, 83 Stat. 843; Pub. L. 92–412, title I, § 105, Aug. 29, 1972, 86 Stat. 645; Pub. L. 93–500, §§ 3(c), (d), 5 (b), (c), 6, Oct. 29, 1974, 88 Stat. 1553, 1554; Pub. L. 95–52, title I, § 111, June 22, 1977, 91 Stat. 240, setting forth determinations, limitations, etc., respecting the control and monitoring of exports, expired on Sept. 30, 1979.

Amendments

1988—Subsec. (a)(1). Pub. L. 100–418, § 2413, inserted provision defining “affiliates” to include both governmental entities and commercial entities that are controlled in fact by controlled countries.
Subsec. (a)(4) to (6). Pub. L. 100–418, § 2414, added pars. (4) to (6).
Subsec. (b)(2). Pub. L. 100–418, § 2415(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “No authority or permission to export may be required under this section before goods or technology are exported in the case of exports to a country which maintains export controls on such goods or technology cooperatively with the United States pursuant to the agreement of the group known as the Coordinating Committee, if the goods or technology is at such a level of performance characteristics that the export of the goods or technology to controlled countries requires only notification of the participating governments of the Coordinating Committee.”
Subsec. (b)(3). Pub. L. 100–418, § 2415(b), added par. (3).
Subsec. (c)(2). Pub. L. 100–418, § 2416(a), substituted “If the Secretary and the Secretary of Defense are unable to concur on such items, as determined by the Secretary, the Secretary of Defense may, within 20 days after receiving notification of the Secretary’s determination, refer the matter to the President for resolution. The Secretary of Defense shall notify the Secretary of any such referral. The President shall, not later than 20 days after such referral, notify the Secretary of his determination with respect to the inclusion of such items on the list. Failure of the Secretary of Defense to notify the President or the Secretary, or failure of the President to notify the Secretary, in accordance with this paragraph, shall be deemed by the Secretary to constitute concurrence in the implementation of the actions proposed by the Secretary regarding the inclusion of such items on the list.” for “If the Secretary and the Secretary of Defense are unable to concur on such items, the matter shall be referred to the President for resolution.”
Subsec. (c)(3). Pub. L. 100–418, § 2416(b)(1), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “The Secretary shall review the list established pursuant to this subsection at least once each year in order to carry out the policy set forth in section 3(2)(A) of this Act and the provisions of this section, and shall promptly make such revisions of the list as may be necessary after each such review. Before beginning each annual review, the Secretary shall publish notice of that annual review in the Federal Register. The Secretary shall provide an opportunity during such review for comment and the submission of data, with or without oral presentation, by interested Government agencies and other affected or potentially affected parties. The Secretary shall publish in the Federal Register any revisions in the list, with an explanation of the reasons for the revisions. The Secretary shall further assess, as part of such review, the availability from sources outside the United States of goods and technology comparable to those subject to export controls imposed under this section.”
Subsec. (c)(4). Pub. L. 100–418, § 2416(b)(3), added par. (4).
Subsec. (c)(5). Pub. L. 100–418, § 2416(c)(1), added par. (5).
Subsec. (c)(6), (7). Pub. L. 100–418, § 2416(c)(2), (3), added pars. (6) and (7).
Subsec. (d)(5). Pub. L. 100–418, § 2416(b)(2), substituted “on an ongoing basis” for “at least annually”.
Subsec. (e)(6). Pub. L. 100–418, § 2417, added par. (6).
Subsec. (f). Pub. L. 100–418, § 2418(a), amended subsec. generally, revising and restating as pars. (1) to (10) provisions of former pars. (1) to (7).
Subsec. (g). Pub. L. 100–418, § 2419, designated existing provisions as par. (1) and added par. (2).
Subsec. (h)(2). Pub. L. 100–418, § 2420(a), added cls. (D) and (E), redesignated former cl. (E) as (F), and struck out former cl. (D) which read as follows: “exports subject to multilateral controls in which the United States participates, including proposed revisions of any such multilateral controls, and”.
Subsec. (h)(6). Pub. L. 100–418, § 2418(b), inserted at end “After an agreement is reached with a country pursuant to negotiations under this paragraph to eliminate foreign availability of goods or technology, the Secretary may not require a validated license for the export of such goods or technology to that country.”
Subsec. (i). Pub. L. 100–418, § 2421, substituted “Recognizing the ineffectiveness of unilateral controls and the importance of uniform enforcement measures to the effectiveness of multilateral controls, the President” for “The President” and inserted sentence at end authorizing the President, for purposes of reviews of the International Control List, to include as advisors to the United States delegation to the Committee representatives of industry who are knowledgeable with respect to the items being reviewed.
Subsec. (i)(1) to (11). Pub. L. 100–418, § 2446, completely revised and expanded provisions enumerating the objectives of the negotiations, adding pars. (1) to (11) and striking out former pars. (1) to (9).
Subsec. (m). Pub. L. 100–418, § 2422, amended subsec. generally, substituting provision relating to goods containing controlled parts and components for provision relating to goods containing microprocessors.
1985—Subsec. (a)(1). Pub. L. 99–64, § 105(a)(1), inserted sentence providing that the authority contained in this subsection includes the authority to prohibit or curtail the transfer of goods or technology within the United States to embassies and affiliates of controlled countries.
Subsec. (a)(2). Pub. L. 99–64, § 105(a)(2), struck out designation “(A)” before “Whenever the Secretary makes any revision”, and struck out subpar. (B) which read as follows: “Whenever the Secretary denies any export license under this section, the Secretary shall specify in the notice to the applicant of the denial of such license that the license was denied under the authority contained in this section. The Secretary shall also include in such notice what, if any, modifications in or restrictions on the goods or technology for which the license was sought would allow such export to be compatible with controls imposed under this section, or the Secretary shall indicate in such notice which officers and employees of the Department of Commerce who are familiar with the application will be made reasonably available to the applicant for consultation with regard to such modifications or restriction, if appropriate.”
Subsec. (a)(3). Pub. L. 99–64, § 105(a)(3), struck out “Such regulations shall not be based upon the assumption that such effective safeguards can be devised.”
Subsec. (b)(1). Pub. L. 99–64, § 105(b)(1), designated existing provisions as par. (1) and provided that the President shall establish to a list of controlled countries which may be expanded or reduced by the President based upon certain enumerated factors, and struck out provisions which had stated that the policy of the United States toward individual countries should not be determined exclusively on the basis of that country’s Communist or non-Communist status but rather on the country’s relationships to the United States and countries friendly to the United States.
Pub. L. 99–64, § 105(b)(3), substituted “set forth in this paragraph” for “specified in the preceding sentence” in last sentence.
Subsec. (b)(2). Pub. L. 99–64, § 105(b)(2), added par. (2).
Subsec. (c)(1). Pub. L. 99–64, § 105(c)(1)(A), struck out “commodity” before “control list”.
Subsec. (c)(3). Pub. L. 99–64, § 105(c)(1)(B), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “The Secretary shall issue regulations providing for review of the list established pursuant to this subsection not less frequently than every 3 years in the case of controls maintained cooperatively with other countries, and annually in the case of all other controls, in order to carry out the policy set forth in section 3 (2)(A) and the provisions of this section, and for the prompt issuance of such revisions of the list as may be necessary. Such regulations shall provide interested Government agencies and other affected or potentially affected parties with an opportunity, during such review, to submit written data, views, or arguments, with or without oral presentation. Such regulations shall further provide that, as part of such review, an assessment be made of the availability from sources outside the United States, or any of its territories or possessions, of goods and technology comparable to those controlled under this section. The Secretary and any agency rendering advice with respect to export controls shall keep adequate records of all decisions made with respect to revision of the list of controlled goods and technology, including the factual and analytical basis for the decision, and, in the case of the Secretary, any dissenting recommendations received from any agency.”
Subsec. (d)(2). Pub. L. 99–64, § 106(a)(1), added subpar. (D) and in provisions following subpar. (D) substituted “, or available in fact from sources outside the United States to, controlled countries” for “countries to which exports are controlled under this section”.
Subsec. (d)(4) to (7). Pub. L. 99–64, § 106(a)(2), added pars. (4) to (7) and struck out former pars. (4) to (6) which read as follows:
“(4) The initial version of the list referred to in paragraph (2) shall be completed and published in an appropriate form in the Federal Register not later than October 1, 1980.
“(5) The list of militarily critical technologies developed primarily by the Secretary of Defense pursuant to paragraph (2) shall become a part of the commodity control list, subject to the provisions of subsection (c) of this section.
“(6) The Secretary of Defense shall report annually to the Congress on actions taken to carry out this subsection.”
Subsec. (e)(1). Pub. L. 99–64, § 105(d)(1), substituted “the multiple validated export licenses described in section 4(a)(2) of this Act in lieu of individual validated licenses” for “a qualified general license in lieu of a validated license”.
Subsec. (e)(3) to (5). Pub. L. 99–64, § 105(d)(2), added pars. (3) to (5) and struck out former pars. (3) and (4) which read as follows:
“(3) To the maximum extent practicable, consistent with the national security of the United States, the Secretary shall require a qualified general license, in lieu of a validated license, under this section for the export of goods or technology if the export of such goods or technology is restricted pursuant to a multilateral agreement, formal or informal, to which the United States is a party, but such export does not require the specific approval of the parties to such multilateral agreement.
“(4) Not later than July 1, 1980, the Secretary shall establish procedures for the approval of goods and technology that may be exported pursuant to a qualified general license.”
Subsec. (f)(1). Pub. L. 99–64, § 107(a), (i), (j)(1), inserted “the Secretary of Defense and other” after “The Secretary, in consultation with”, and substituted “controlled countries” for “such destinations” and “comparable quality” for “sufficient quality”.
Subsec. (f)(2). Pub. L. 99–64, § 107(i), substituted “comparable quality” for “sufficient quality”.
Subsec. (f)(3). Pub. L. 99–64, § 107(b), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “With respect to export controls imposed under this section, any determination of foreign availability which is the basis of a decision to grant a license for, or to remove a control on, the export of a good or technology, shall be made in writing and shall be supported by reliable evidence, including scientific or physical examination, expert opinion based upon adequate factual information, or intelligence information. In assessing foreign availability with respect to license applications, uncorroborated representations by applicants shall not be deemed sufficient evidence of foreign availability.”
Subsec. (f)(4). Pub. L. 99–64, § 107(c), (j)(2), substituted first three sentences for “sentence providing that in any case in which, in accordance with this subsection, export controls are imposed under this section notwithstanding foreign availability, the President shall take steps to initiate negotiations with the governments of the appropriate foreign countries for the purpose of eliminating such availability”, and substituted “controlled countries” for “countries to which exports are controlled under this section”.
Subsec. (f)(5). Pub. L. 99–64, § 107(d)(1), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “In order to further carry out the policies set forth in this Act, the Secretary shall establish, within the Office of Export Administration of the Department of Commerce, a capability to monitor and gather information with respect to the foreign availability of any goods or technology subject to export controls under this Act.”
Subsec. (f)(6). Pub. L. 99–64, § 107(d)(2), substituted “Office of Foreign Availability” for “Office of Export Administration”.
Subsec. (f)(7). Pub. L. 99–64, § 107(e), added par. (7).
Subsec. (g). Pub. L. 99–64, § 105(e), amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: “In order to ensure that requirements for validated licenses and qualified general licenses are periodically removed as goods or technology subject to such requirements become obsolete with respect to the national security of the United States, regulations issued by the Secretary may, where appropriate, provide for annual increases in the performance levels of goods or technology subject to any such licensing requirement. Any such goods or technology which no longer meet the performance levels established by the latest such increase shall be removed from the list established pursuant to subsection (c) of this section unless, under such exceptions and under such procedures as the Secretary shall prescribe, any other department or agency of the United States objects to such removal and the Secretary determines, on the basis of such objection, that the goods or technology shall not be removed from the list. The Secretary shall also consider, where appropriate, removing site visitation requirements for goods and technology which are removed from the list unless objections described in this subsection are raised.”
Subsec. (h)(1). Pub. L. 99–64, § 107(f)(1), inserted reference to the intelligence community.
Subsec. (h)(2)(E). Pub. L. 99–64, § 107(f)(2), added cl. (E).
Subsec. (h)(6). Pub. L. 99–64, § 107(f)(3), (i), (j)(2), substituted “controlled countries” for “countries to which exports are controlled under this section”, “comparable quality” for “sufficient quality”, and “the technical advisory committee shall submit that certification to the Congress at the same time the certification is made to the Secretary, together with the documentation for the certification” for “and provides adequate documentation for such certification, in accordance with the procedures established pursuant to subsection (f)(1) of this section, the Secretary shall investigate such availability, and if such availability is verified, the Secretary shall remove the requirement of a validated license for the export of the goods or technology, unless the President determines that the absence of export controls under this section would prove detrimental to the national security of the United States”, struck out provision that, in any case in which the President determined that export controls under this section had to be maintained notwithstanding foreign availability, the Secretary had to publish that determination together with a concise statement of its basis and the estimated economic impact of the decision, inserted provisions directing the Secretary to investigate certified foreign availability and, not later than 90 days after the certification is made, submit a report to the technical advisory committee and the Congress, and added subpars. (A) to (C) and concluding provision.
Subsec. (i)(3). Pub. L. 99–64, § 105(f)(1), (2), redesignated par. (4) as (3) and substituted “agreed to by members of the Committee” for “agreed to pursuant to paragraph (3)”, and struck out former par. (3) relating to agreement to reduce the scope of the export controls imposed by agreement of the Committee to a level acceptable to and enforceable by all governments participating in the Committee.
Subsec. (i)(4) to (9). Pub. L. 99–64, § 105(f)(3), added pars. (4) to (9). Former par. (4) redesignated (3).
Subsec. (j)(1). Pub. L. 99–64, § 105(g), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “Any United States firm, enterprise, or other nongovernmental entity which, for commercial purposes, enters into any agreement with any agency of the government of a country to which exports are restricted for national security purposes, which agreement cites an intergovernmental agreement (to which the United States and such country are parties) calling for the encouragement of technical cooperation and is intended to result in the export from the United States to the other party of unpublished technical data of United States origin, shall report the agreement with such agency to the Secretary.”
Subsec. (k). Pub. L. 99–64, § 105(h), inserted “, including those countries not participating in the group known as the Coordinating Committee,” after “conducting negotiations with other countries”, and inserted provision that, in cases where such negotiations produce agreements on export restrictions comparable in practice to those maintained by the Coordinating Committee, the Secretary shall treat exports, whether by individual or multiple licenses, to countries party to such agreements in the same manner as exports to members of the Coordinating Committee are treated, including the same manner as exports are treated under subsection (b)(2) of this section and section 10(o) of this Act.
Subsec. (l). Pub. L. 99–64, § 105(i), struck out “to military use” after “Diversion” in heading, and amended text of subsec. (l), generally. Prior to amendment, subsec. (l) read as follows:
“(1) Whenever there is reliable evidence that goods or technology, which were exported subject to national security controls under this section to a country to which exports are controlled for national security purposes, have been diverted to significant military use in violation of the conditions of an export license, the Secretary for as long as that diversion to significant military use continues—
“(A) shall deny all further exports to the party responsible for that diversion of any goods or technology subject to national security controls under this section which contribute to that particular military use, regardless of whether such goods or technology are available to that country from sources outside the United States; and
“(B) may take such additional steps under this Act with respect to the party referred to in subparagraph (A) as are feasible to deter the further military use of the previously exported goods or technology.
“(2) As used in this subsection, the terms ‘diversion to significant military use’ and ‘significant military use’ means the use of United States goods or technology to design or produce any item on the United States Munitions List.”
Subsecs. (m) to (q). Pub. L. 99–64, § 105(j), added subsecs. (m) to (q).

Effective Date of 1985 Amendment

Section 105(c)(2) of Pub. L. 99–64 provided that: “The amendment made by paragraph (1)(B) of this subsection [amending this section] shall take effect on October 1, 1985.”

Transfer of Functions

For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203 (1), 551 (d), 552 (d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Delegation of Functions

Functions conferred upon President under this section delegated to Secretary of Commerce by Ex. Ord. No. 12214, May 2, 1980, 45 F.R. 29783, set out under section 2403 of this Appendix, with the exception of the functions conferred upon the President under subsecs. (f)(4) and (i) of this section which were delegated to the Secretary of State and the functions conferred upon the President under subsecs. (c), (f)(1), and (h)(6) of this section which were reserved to the President.

Review of Export Protections for Military Superiority Resources

Pub. L. 108–136, div. A, title XII, § 1211, Nov. 24, 2003, 117 Stat. 1650, provided that:
“(a) Review Required.—The Secretary of Defense shall carry out a review—
“(1) to identify goods or technology (as defined in section 16 of the Export Administration Act of 1979 (50 App. U.S.C. 2415)) that, if obtained by a potential adversary, could significantly undermine the military superiority or qualitative military advantage of the United States over potential adversaries or otherwise contribute to the acquisition of weapons of mass destruction and their delivery systems; and
“(2) to determine whether any of the items or technologies identified under paragraph (1) are not currently controlled for export purposes on either the Commerce Control List or the United States Munitions List.
“(b) Annual Reports.—(1) Not later than March 1, 2004, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives an unclassified report, with a classified annex as necessary, on the results of the review under subsection (a).
“(2) For each of the next two years after the submission of the report under paragraph (1), the Secretary shall submit to those committees an update on that report. Such updates shall be submitted not later than March 1, 2005, and not later than March 1, 2006.”

Review of Proposed Changes to Export Thresholds for Computers

Pub. L. 106–554, § 1(a)(2) [title III, § 314], Dec. 21, 2000, 114 Stat. 2763, 2763A–123, which provided that not more than 50 days after the date of the submission of the report referred to in subsec. (d) of section 1211 of Pub. L. 105–85 (set out below), the Comptroller General was to submit an assessment to Congress that contained an analysis of new computer performance levels proposed by the President under such section, was repealed by Pub. L. 110–161, div. H, title I, § 1502(b), Dec. 26, 2007, 121 Stat. 2250.

Release of Export Information by Department of Commerce to Other Agencies for Purpose of National Security Assessment

Pub. L. 105–261, div. A, title XV, § 1522, Oct. 17, 1998, 112 Stat. 2179, provided that:
“(a) Release of Export Information.—The Secretary of Commerce shall, upon the written request of an official specified in subsection (c), transmit to that official any information relating to exports that is held by the Department of Commerce and is requested by that official for the purpose of assessing national security risks. The Secretary shall transmit such information within 10 business days after receiving such a request.
“(b) Nature of Information.—The information referred to in subsection (a) includes information concerning—
“(1) export licenses issued by the Department of Commerce;
“(2) exports that were carried out under an export license issued by the Department of Commerce; and
“(3) exports from the United States that were carried out without an export license.
“(c) Requesting Officials.—The officials referred to in subsection (a) are the Secretary of State, the Secretary of Defense, the Secretary of Energy, and the Director of Central Intelligence. Each of those officials may delegate to any other official within their respective departments and agency the authority to request information under subsection (a).”
[Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108–458, set out as a note under section 401 of Title 50, War and National Defense.]

Export Controls on High Performance Computers

Pub. L. 105–85, div. A, title XII, subtitle B, Nov. 18, 1997, 111 Stat. 1932, as amended by Pub. L. 105–261, div. A, title XV, § 1524, Oct. 17, 1998, 112 Stat. 2180; Pub. L. 106–65, div. A, title X, § 1067(4), title XIV, § 1407(c), Oct. 5, 1999, 113 Stat. 774, 801; Pub. L. 106–398, § 1 [[div. A], title XII, § 1234(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–330, provided that:
“SEC. 1211. EXPORT APPROVALS FOR HIGH PERFORMANCE COMPUTERS.
“(a) Prior Approval of Exports and Reexports.—The President shall require that no digital computer with a composite theoretical performance level of more than 2,000 millions of theoretical operations per second (MTOPS) or with such other composite theoretical performance level as may be established subsequently by the President under subsection (d), may be exported or reexported without a license to a country specified in subsection (b) if the Secretary of Commerce, the Secretary of Defense, the Secretary of Energy, the Secretary of State, or the Director of the Arms Control and Disarmament Agency objects, in writing, to such export or reexport. Any person proposing to export or reexport such a digital computer shall so notify the Secretary of Commerce, who, within 24 hours after receiving the notification, shall transmit the notification to the Secretary of Defense, the Secretary of Energy, the Secretary of State, and the Director of the Arms Control and Disarmament Agency.
“(b) Covered Countries.—For purposes of subsection (a), the countries specified in this subsection are the countries listed as ‘Computer Tier 3’ eligible countries in section 740.7(d) of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997, subject to modification by the President under subsection (e).
“(c) Time Limit.—Written objections under subsection (a) to an export or reexport shall be raised within 10 days after the notification is received under subsection (a). If such a written objection to the export or reexport of a computer is raised, the computer may be exported or reexported only pursuant to a license issued by the Secretary of Commerce under the Export Administration Regulations of the Department of Commerce, without regard to the licensing exceptions otherwise authorized under section 740.7 of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997. If no objection is raised within the 10-day period, the export or reexport is authorized.
“(d) Adjustment of Composite Theoretical Performance.—The President, in consultation with the Secretary of Commerce, the Secretary of Defense, the Secretary of Energy, the Secretary of State, and the Director of the Arms Control and Disarmament Agency, may establish a new composite theoretical performance level for purposes of subsection (a). Such new level shall not take effect until 60 days after the President submits to the congressional committees designated in section 1215 a report setting forth the new composite theoretical performance level and the justification for such new level. Each report shall, at a minimum—
“(1) address the extent to which high performance computers of a composite theoretical level between the level established in subsection (a) or such level as has been previously adjusted pursuant to this section and the new level, are available from other countries;
“(2) address all potential uses of military significance to which high performance computers at the new level could be applied; and
“(3) assess the impact of such uses on the national security interests of the United States.
“(e) Adjustment of Covered Countries.—
“(1) In general.—The President, in consultation with the Secretary of Commerce, the Secretary of Defense, the Secretary of Energy, the Secretary of State, and the Director of the Arms Control and Disarmament Agency, may add a country to or remove a country from the list of covered countries in subsection (b), except that a country may be removed from the list only in accordance with paragraph (2).
“(2) Deletions from list of covered countries.—The removal of a country from the list of covered countries under subsection (b) shall not take effect until 120 days after the President submits to the congressional committees designated in section 1215 a report setting forth the justification for the deletion.
“(3) Excluded countries.—A country may not be removed from the list of covered countries under subsection (b) if—
“(A) the country is a ‘nuclear-weapon state’ (as defined by Article IX of the Treaty on the Non-Proliferation of Nuclear Weapons) and the country is not a member of the North Atlantic Treaty Organization; or
“(B) the country is not a signatory of the Treaty on the Non-Proliferation of Nuclear Weapons and the country is listed on Annex 2 to the Comprehensive Nuclear Test-Ban Treaty.
“(f) Classification.—Each report under subsections (d) and (e) shall be submitted in an unclassified form and may, if necessary, have a classified supplement.
“(g) Delegation of Objection Authority Within the Department of Defense.—For the purposes of the Department of Defense, the authority to issue an objection referred to in subsection (a) shall be executed for the Secretary of Defense by an official at the Assistant Secretary level within the office of the Under Secretary of Defense for Policy. In implementing subsection (a), the Secretary of Defense shall ensure that Department of Defense procedures maximize the ability of the Department of Defense to be able to issue an objection within the 10-day period specified in subsection (c).
“(h) Calculation of 60-Day Period.—The 60-day period referred to in subsection (d) shall be calculated by excluding the days on which either House of Congress is not in session because of an adjournment of the Congress sine die.
“SEC. 1212. REPORT ON EXPORTS OF HIGH PERFORMANCE COMPUTERS.
“(a) Report.—Not later than 60 days after the date of the enactment of this Act [Nov. 18, 1997], the President shall provide to the congressional committees specified in section 1215 a report identifying all exports of digital computers with a composite theoretical performance of more than 2,000 millions of theoretical operations per second (MTOPS) to all countries since January 25, 1996. For each export, the report shall identify—
“(1) whether an export license was applied for and whether one was granted;
“(2) the date of the transfer of the computer;
“(3) the United States manufacturer and exporter of the computer;
“(4) the MTOPS level of the computer; and
“(5) the recipient country and end user.
“(b) Additional Information on Exports to Certain Countries.—In the case of exports to countries specified in subsection (c), the report under subsection (a) shall identify the intended end use for the exported computer and the assessment by the executive branch of whether the end user is a military end user or an end user involved in activities relating to nuclear, chemical, or biological weapons or missile technology. Information provided under this subsection may be submitted in classified form if necessary.
“(c) Covered Countries.—For purposes of subsection (b), the countries specified in this subsection are—
“(1) the countries listed as ‘Computer Tier 3’ eligible countries in section 740.7(d) of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997; and
“(2) the countries listed in section 740.7(e) of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997.
“SEC. 1213. POST-SHIPMENT VERIFICATION OF EXPORT OF HIGH PERFORMANCE COMPUTERS.
“(a) Required Post-Shipment Verification.—The Secretary of Commerce shall conduct post-shipment verification of each digital computer with a composite theoretical performance of more than 2,000 millions of theoretical operations per second (MTOPS) that is exported from the United States, on or after the date of the enactment of this Act [Nov. 18, 1998], to a country specified in subsection (b).
“(b) Covered Countries.—For purposes of subsection (a), the countries specified in this subsection are the countries listed as ‘Computer Tier 3’ eligible countries in section 740.7 of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997, subject to modification by the President under section 1211 (e).
“(c) Annual Report.—The Secretary of Commerce shall submit to the congressional committees specified in section 1215 an annual report on the results of post-shipment verifications conducted under this section during the preceding year. Each such report shall include a list of all such items exported from the United States to such countries during the previous year and, with respect to each such export, the following:
“(1) The destination country.
“(2) The date of export.
“(3) The intended end use and intended end user.
“(4) The results of the post-shipment verification.
“(d) Explanation When Verification Not Conducted.—If a post-shipment verification has not been conducted in accordance with subsection (a) with respect to any such export during the period covered by a report, the Secretary shall include in the report for that period a detailed explanation of the reasons why such a post-shipment verification was not conducted.
“(e) Adjustment of Performance Levels.—Whenever a new composite theoretical performance level is established under section 1211 (d), that level shall apply for purposes of subsection (a) of this section in lieu of the level set forth in subsection (a).
“SEC. 1214. GAO STUDY ON CERTAIN COMPUTERS; END USER INFORMATION ASSISTANCE.
“(a) In General.—The Comptroller General of the United States shall submit to the congressional committees specified in section 1215 a study of the national security risks relating to the sale of computers with a composite theoretical performance of between 2,000 and 7,000 millions of theoretical operations per second (MTOPS) to end users in countries specified in subsection (c). The study shall also analyze any foreign availability of computers described in the preceding sentence and the impact of such sales on United States exporters.
“(b) End User Information Assistance to Exporters.—The Secretary of Commerce shall establish a procedure by which exporters may seek information on questionable end users in countries specified in subsection (c) who are seeking to obtain computers described in subsection (a).
“(c) Covered Countries.—For purposes of subsections (a) and (b), the countries specified in this subsection are the countries listed as ‘Computer Tier 3’ eligible countries in section 740.7(d) of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997.
“SEC. 1215. CONGRESSIONAL COMMITTEES.
“For purposes of sections 1211 (d), 1212 (a), 1213 (c), and 1214 (a) the congressional committees specified in those sections are the following:
“(1) The Committee on Banking, Housing, and Urban Affairs and the Committee on Armed Services of the Senate.
“(2) The Committee on International Relations [now Committee on Foreign Affairs] and the Committee on Armed Services of the House of Representatives.”
[Pub. L. 106–398, § 1 [[div. A], title XII, § 1234(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–331, provided that: “The amendments made by subsection (a) [amending section 1211 of Pub. L. 105–85, set out above] shall apply to any new composite theoretical performance level established for purposes of section 1211(a) of the National Defense Authorization Act for Fiscal Year 1998 [Pub. L. 105–85] that is submitted by the President pursuant to section 1211(d) of that Act on or after the date of the enactment of this Act [Oct. 30, 2000].”]
[For abolition, transfer of functions, and treatment of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of Title 22, Foreign Relations and Intercourse.]

Reports on Advanced Supercomputer Sales to Certain Foreign Nations

Pub. L. 105–85, div. C, title XXXI, § 3157, Nov. 18, 1997, 111 Stat. 2045, as amended by Pub. L. 106–398, § 1 [div. C, title XXXI, § 3134], Oct. 30, 2000, 114 Stat. 1654, 1654A–456, provided that:
“(a) Reports.—The Secretary of Energy shall require that any company that is a participant in the Accelerated Strategic Computing Initiative (ASCI) program of the Department of Energy report to the Secretary and to the Secretary of Defense each sale by that company to a country designated as a Tier III country of a computer capable of operating at a speed in excess of 2,000 millions theoretical operations per second (MTOPS). The report shall include a description of the following with respect to each such sale:
“(1) The anticipated end-use of the computer sold.
“(2) The software included with the computer.
“(3) Any arrangement under the terms of the sale regarding—
“(A) upgrading the computer;
“(B) servicing the computer; or
“(C) furnishing spare parts for the computer.
“(b) Covered Countries.—For purposes of this section, the countries designated as Tier III countries are the countries listed as ‘computer tier 3’ eligible countries in part 740.7 of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997 (or any successor list).
“(c) Quarterly Submission of Reports.—The Secretary of Energy shall require that reports under subsection (a) be submitted quarterly.
“(d) Annual Report.—The Secretary of Energy shall submit to Congress an annual report containing all information received under subsection (a) during the preceding year. The first annual report shall be submitted not later than July 1, 1998.
“(e) Adjustment of Performance Levels.—Whenever a new composite theoretical performance level is established under section 1211 (d) [Pub. L. 105–85, set out as a note above], that level shall apply for the purposes of subsection (a) of this section in lieu of the level set forth in subsection (a).”

National Security Implications of United States Export Control Policy

Pub. L. 104–106, div. A, title XIII, § 1322, Feb. 10, 1996, 110 Stat. 478, provided that:
“(a) Findings.—Congress makes the following findings:
“(1) Export controls remain an important element of the national security policy of the United States.
“(2) It is in the national security interest that United States export control policy be effective in preventing the transfer, to potential adversaries or combatants of the United States, of technology that threatens the national security or defense of the United States.
“(3) It is in the national security interest that the United States monitor aggressively the export of militarily critical technology in order to prevent its diversion to potential adversaries or combatants of the United States.
“(4) The Department of Defense relies increasingly on commercial and dual-use technologies, products, and processes to support United States military capabilities and economic strength.
“(5) The maintenance of the military advantage of the United States depends on effective export controls on dual-use items and technologies that are critical to the military capabilities of the Armed Forces.
“(b) Sense of Congress.—It is the sense of Congress that—
“(1) the Secretary of Defense should evaluate license applications for the export of militarily critical commodities the export of which is controlled for national security reasons if those commodities are to be exported to certain countries of concern;
“(2) the Secretary of Defense should identify the dual-use items and technologies that are critical to the military capabilities of the Armed Forces, including the military use made of such items and technologies;
“(3) upon identification by the Secretary of Defense of the dual-use items and technologies referred to in paragraph (2), the President should ensure effective export controls or use unilateral export controls on dual-use items and technologies that are critical to the military capabilities of the Armed Forces (regardless of the availability of such items or technologies overseas) with respect to the countries that—
“(A) pose a threat to the national security interests of the United States; and
“(B) are not members in good standing of bilateral or multilateral agreements to which the United States is a party on the use of such items and technologies; and
“(4) the President, upon recommendation of the Secretary of Defense, should ensure effective controls on the re-export by other countries of dual-use items and technologies that are critical to the military capabilities of the Armed Forces.
“(c) Annual Report.—(1) Not later than December 1 of each year through 1999, the President shall submit to the committees specified in paragraph (4) a report on the effect of the export control policy of the United States on the national security interests of the United States.
“(2) The report shall include the following:
“(A) A list setting forth each country determined by the Secretary of Defense, the intelligence community, and other appropriate agencies to be a rogue nation or potential adversary or combatant of the United States.
“(B) For each country so listed, a list of—
“(i) the categories of items that the United States currently prohibits for export to the country;
“(ii) the categories of items that may be exported from the United States with an individual license, and in such cases, any licensing conditions normally required and the policy grounds used for approvals and denials; and
“(iii) the categories of items that may be exported under a general license designated ‘G-DEST’.
“(C) For each category of items listed under subparagraph (B)—
“(i) a statement whether a prohibition, control, or licensing requirement on a category of items is imposed pursuant to an international multilateral agreement or is unilateral;
“(ii) a statement whether a prohibition, control, or licensing requirement on a category of items is imposed by the other members of an international agreement or is unilateral;
“(iii) when the answer under either clause (i) or clause (ii) is unilateral, a statement concerning the efforts being made to ensure that the prohibition, control, or licensing requirement is made multilateral; and
“(iv) a statement on what impact, if any, a unilateral prohibition is having, or would have, on preventing the rogue nation or potential adversary from attaining the items in question for military purposes.
“(D) A description of United States policy on sharing satellite imagery that has military significance and a discussion of the criteria for determining the imagery that has that significance.
“(E) A description of the relationship between United States policy on the export of space launch vehicle technology and the Missile Technology Control Regime.
“(F) An assessment of United States efforts to support the inclusion of additional countries in the Missile Technology Control Regime.
“(G) An assessment of the ongoing efforts made by potential participant countries in the Missile Technology Control Regime to meet the guidelines established by the Missile Technology Control Regime.
“(H) A discussion of the history of the space launch vehicle programs of other countries, including a discussion of the military origins and purposes of such programs and the current level of military involvement in such programs.
“(3) The President shall submit the report in unclassified form, but may include a classified annex.
“(4) The committees referred to in paragraph (1) are the following:
“(A) The Committee on Armed Services and the Committee on Foreign Relations of the Senate.
“(B) The Committee on National Security [now Committee on Armed Services] and the Committee on International Relations [now Committee on Foreign Affairs] of the House of Representatives.
“(5) For purposes of this subsection, the term ‘Missile Technology Control Regime’ means the policy statement announced on April 16, 1987, between the United States, the United Kingdom, the Federal Republic of Germany, France, Italy, Canada, and Japan to restrict sensitive missile-relevant transfers based on the Missile Technology Control Regime Annex, and any amendment thereto.”

Department of Defense Review of Export Licenses for Certain Biological Pathogens

Pub. L. 104–106, div. A, title XIII, § 1323, Feb. 10, 1996, 110 Stat. 480, provided that:
“(a) Department of Defense Review.—Any application to the Secretary of Commerce for a license for the export of a class 2, class 3, or class 4 biological pathogen to a country identified to the Secretary under subsection (c) as a country that is known or suspected to have a biological weapons program shall be referred to the Secretary of Defense for review. The Secretary of Defense shall notify the Secretary of Commerce within 15 days after receipt of an application under the preceding sentence whether the export of such biological pathogen pursuant to the license would be contrary to the national security interests of the United States.
“(b) Denial of License if Contrary to National Security Interest.—A license described in subsection (a) shall be denied by the Secretary of Commerce if it is determined that the export of such biological pathogen to that country would be contrary to the national security interests of the United States.
“(c) Identification of Countries Known or Suspected To Have a Program To Develop Offensive Biological Weapons.—(1) The Secretary of Defense shall determine, for the purposes of this section, those countries that are known or suspected to have a program to develop offensive biological weapons. Upon making such determination, the Secretary shall provide to the Secretary of Commerce a list of those countries.
“(2) The Secretary of Defense shall update the list under paragraph (1) on a regular basis. Whenever a country is added to or deleted from such list, the Secretary shall notify the Secretary of Commerce.
“(3) Determination under this subsection of countries that are known or suspected to have a program to develop offensive biological weapons shall be made in consultation with the Secretary of State and the intelligence community.
“(d) Definition.—For purposes of this section, the term ‘class 2, class 3, or class 4 biological pathogen’ means any biological pathogen that is characterized by the Centers for Disease Control as a class 2, class 3, or class 4 biological pathogen.”

Annual Reports on Improving Export Control Mechanisms

Pub. L. 104–106, div. A, title XIII, § 1324(a), (b), Feb. 10, 1996, 110 Stat. 480, 481, provided that:
“(a) Joint Reports by Secretaries of State and Commerce.—Not later than April 1 of each of 1996 and 1997, the Secretary of State and the Secretary of Commerce shall submit to Congress a joint report, prepared in consultation with the Secretary of Defense, relating to United States export-control mechanisms. Each such report shall set forth measures to be taken to strengthen United States export-control mechanisms, including—
“(1) steps being taken by each Secretary (A) to share on a regular basis the export licensing watchlist of that Secretary’s department with the other Secretary, and (B) to incorporate the export licensing watchlist data received from the other Secretary into the watchlist of that Secretary’s department;
“(2) steps being taken by each Secretary to incorporate into the watchlist of that Secretary’s department similar data from systems maintained by the Department of Defense and the United States Customs Service; and
“(3) a description of such further measures to be taken to strengthen United States export-control mechanisms as the Secretaries consider to be appropriate.
“(b) Reports by Inspectors General.—(1) Not later than April 1 of each of 1996 and 1997, the Inspector General of the Department of State and the Inspector General of the Department of Commerce shall each submit to Congress a report providing that official’s evaluation of the effectiveness during the preceding year of the export licensing watchlist screening process of that official’s department. The reports shall be submitted in both a classified and unclassified version.
“(2) Each report of an Inspector General under paragraph (1) shall (with respect to that official’s department)—
“(A) set forth the number of export licenses granted to parties on the export licensing watchlist;
“(B) set forth the number of end-use checks performed with respect to export licenses granted to parties on the export licensing watchlist the previous year;
“(C) assess the screening process used in granting an export license when an applicant is on the export licensing watchlist; and
“(D) assess the extent to which the export licensing watchlist contains all relevant information and parties required by statute or regulation.”

Study on National Security Export Controls

Section 2433 of Pub. L. 100–418 directed Secretary of Commerce and Secretary of Defense, not later than 60 days after Aug. 23, 1988, to enter into appropriate arrangements with National Academy of Sciences and National Academy of Engineering to conduct a comprehensive study of adequacy of current export administration system in safeguarding United States national security while maintaining United States international competitiveness and Western technological preeminence, further directed Academies to prepare and submit to President and Congress, not later than 18 months after entering into such arrangements, a report containing a detailed statement of findings and conclusions of Academies pursuant to such study, together with their recommendations for such legislative or regulatory reforms as they considered appropriate, and further provided for an Advisory Panel to aid in such study, as well as executive branch cooperation, and appropriations for such study.

Delegation of Authority Under Section 1322(c) of Public Law 104–106

Determination of President of the United States, No. 97–39, Sept. 30, 1997, 62 F.R. 52477, provided:
By the authority vested in me by the Constitution and laws of the United States of America, I hereby delegate to the Secretary of Defense the duties and responsibilities vested in the President by section 1322(c) of the National Defense Authorization Act for Fiscal Year 1996 (“the Act”) (Public Law 104–106, 110 Stat. 478–479 (1996)) [set out as a note above].
The reporting requirement delegated by this memorandum may be redelegated not lower than the Under Secretary level. The Department of Defense shall obtain concurrence on the report from the following agencies: the Department of Commerce, the Department of State, the Department of the Treasury, and the Director of Central Intelligence on behalf of the intelligence community prior to submission to the Congress.
Any reference in this memorandum to the provisions of any Act shall be deemed to be a reference to such Act or its provisions as may be amended from time to time.
The Secretary of Defense is authorized and directed to publish this memorandum in the Federal Register.
William J. Clinton.

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