157
(ii) No authority or permission may be re-
quired under section 105 or section 106 to reex-
port to a terrorist country or an embargoed
country technology that is produced in a coun-
try other than the United States and is com-
mingled with or drawn from technology that is
produced in the United States, if the value of
the controlled United States content of the
technology produced in such other country is 10
percent or less of the total value of the tech-
nology.
(C) DEFINITIONS.—For purposes of this
paragraph—
(i) the ‘‘controlled United States con-
tent’’ of a commodity or technology means
those commodities or technology that—
(I) are subject to the jurisdiction
of the United States;
(II) are incorporated into the
commodity or technology; and
(III) would, at the time of the re-
export, require a license under section
105 or 106 if exported from the Unit-
ed States to a country to which the
158
commodity or technology is to be reex-
ported;
(ii) an ‘‘embargoed country’’ is a
country against which an embargo is in ef-
fect under the Trading with the Enemy
Act, the International Emergency Eco-
nomic Powers Act, or other provision of
law; and
(iii) a ‘‘terrorist country’’ is a country
with respect to which a determination is in
effect that was made under section
106(i)(1)(A) of this Act, or section
6(j)(1)(A) of the Export Administration
Act of 1979, that the government of such
country has repeatedly provided support
for acts of international terrorism.
(3) TREATMENT OF TECHNOLOGY AND SOURCE
CODE.—For purposes of this subsection, technology
and source code used to design or produce foreign-
made commodities are not deemed to be incor-
porated into such foreign-made commodities.
(4) 
REPORTING
REQUIREMENTS.—Notwith-
standing paragraphs (1) through (3), the Secretary
may require persons to report to the Department of
Commerce their proposed calculations and underly-
159
ing data sufficient for the Department of Commerce
to evaluate the adequacy of those calculations and
data related to commodities and technology before a
reexporter may rely upon the exclusions from con-
trols provided in this subsection.
(5) EXCEPTIONS.—Paragraphs (1) and (2) do
not require any changes to regulations in effect on
the effective date of this title and, notwithstanding
paragraphs (1) and (2), controls may be imposed on
commodities or technology transferred, after March
1, 1996, from export control under the Arms Export
Control Act to control under this title if those com-
modities or technology are designated by the Presi-
dent for exemption from paragraph (1) or (2), as
the case may be.
(k) UNFAIR
IMPACT
ON
UNITED
STATES
EX-
PORTER.—
(1) POLICY.—It is the policy of the United
States that no United States exporter should be af-
fected unfairly by export control policies or practices
unless relief from such controls would create a sig-
nificant risk to the foreign policy, nonproliferation,
or national security interests of the United States.
(2) RELIEF FROM EXPORT CONTROLS.—(A) A
person may petition the Secretary for relief from
160
current export control requirements (other than con-
trol requirements specifically imposed by this title or
other provisions of law) on the basis of foreign avail-
ability. A person may also petition the Secretary for
approval of an export license application on other
grounds which the Secretary, with the concurrence
of the Secretary of Defense, shall establish by regu-
lation. The Secretary shall, upon receipt of such pe-
titions, and may, on his or her initiative, conduct as-
sessments for providing relief based upon these
grounds.
(B) For purposes of this subsection, foreign
availability exists when the controlled item is avail-
able in fact, under terms and conditions established
by the Secretary with the concurrence of the sec-
retary of Defense, to controlled countries or end
users from sources outside the United States so that
the requirement for a license is or would be ineffec-
tive in achieving the purpose of the control.
(3) PROVISIONS FOR RELIEF.—The Secretary,
in consultation with appropriate departments and
agencies, shall make determinations of facts under
paragraph (2), addressing, in the case of a petition
filed under paragraph (2), each ground for relief as-
serted in the petition, and, subject to paragraph (4),
161
shall provide at least one of the following forms of
relief to persons that meet the criteria in paragraph
(2):
(A) Change the control status of, or licens-
ing requirements on, all or some of the items in
question so as to eliminate the unfair impact.
(B) Selectively approve the sale of con-
trolled items so as to eliminate the unfair im-
pact.
(C) Seek multilateral support to eliminate
the source of unfair impact. If relief under this
subparagraph is chosen and if such efforts fail
to achieve multilateral support, then the Sec-
retary, not later than 330 days from the date
of the Secretary’s initiation of the assessment
under paragraph (2), shall provide other relief
pursuant to subparagraph (A) or (B) or con-
clude pursuant to paragraph (4) that the grant-
ing of such relief would create a significant risk
to United States nonproliferation, foreign pol-
icy, or national security interests.
A determination that a petitioner qualifies for relief
under paragraph (2) shall not compel the United
States to remove controls from an item that remains
subject to control by a multilateral regime.
162
(4) EXCEPTIONS FROM RELIEF.—The Secretary
shall provide relief under paragraph (3) to a peti-
tioner who qualifies for relief under paragraph (2)
unless the Secretary concludes that the granting of
such relief would create a significant risk to United
States nonproliferation, foreign policy, or national
security interests. In the event the Secretary deter-
mines to grant such relief, he or she may do so un-
less the President determines that such relief would
create a significant risk to the foreign policy, non-
proliferation, or national security interests of the
United States.
(5) PROCEDURES.—
(A) PUBLICATION.—In any case in which
the President or the Secretary determines that
relief under paragraph (3) will not be granted,
notwithstanding the existence of facts that con-
stitute a basis for granting relief, the Secretary
shall publish that determination, together with
a concise statement of its basis and the esti-
mated economic impact of the decision.
(B) NOTICE OF ASSESSMENTS.—Whenever
the Secretary undertakes an assessment under
paragraph (2), the Secretary shall publish in
163
the Federal Register notice of the initiation of
such assessment.
(C) PROCEDURES
FOR
MAKING
DETER-
MINATIONS.—During the conduct of an assess-
ment under this subsection, the Secretary shall
consult with other appropriate departments and
agencies concerning the assessment. The Sec-
retary shall make a determination as to whether
relief is required under paragraph (2) within
120 days after the date of the Secretary’s re-
ceipt of the petition requesting relief or the date
of the Secretary’s initiation of the assessment
(as the case may be) and shall so notify the ap-
plicant. If the Secretary has determined that
relief is appropriate, the Secretary shall, upon
making such a determination, submit the deter-
mination for review to the Department of De-
fense and other appropriate departments and
agencies for consultations regarding the find-
ings and the relief selected. If the Secretary of
Defense or other department or agency head
disagrees with the Secretary’s determination, he
or she may appeal the determination to the
President in writing, but only on the basis of
the criteria set forth in paragraph (4). The
164
President shall resolve any such disagreement
so that, in all cases, not later than 150 days
after the date of the Secretary’s receipt of the
petition requesting relief or the date of the Sec-
retary’s initiation of the assessment (as the
case may be), the Secretary responds in writing
to the petitioner and submits for publication in
the Federal Register, that—
(i) unfair impact exists and—
(I) the requirement of a license
has been removed;
(II) the control status of all or
some of the items in question has
been changed so as to eliminate the
unfair impact;
(III) the sale of controlled items
has been approved so as to eliminate
the unfair impact;
(IV) export controls under this
title are to be maintained notwith-
standing the finding under paragraph
(2); or
(V) 
the 
United 
States 
rec-
ommendation to remove the license re-
quirement or change the control sta-
165
tus will be submitted to a relevant
multilateral regime for consideration
for a period of not more than 180
days beginning on the date of the
publication; or
(ii) a right to relief under paragraph
(2) does not exist.
The reasons for maintaining export controls
under clause (i)(IV) shall be included in the
submission to the petitioner and the publica-
tion. In any case in which the submission for
publication is not made within the 150-day pe-
riod required by this subparagraph, the Sec-
retary may not thereafter require a license for
the export of items that are the subject of the
allegation under paragraph (2).
(D) NEGOTIATIONS TO ELIMINATE UNFAIR
IMPACT.—(i) In any case in which export con-
trols are maintained under this section pursu-
ant to paragraph (4) despite a determination of
unfair impact, the Secretary of State shall ac-
tively pursue negotiations with the governments
of the appropriate foreign countries for the pur-
pose of eliminating the unfair impact. No later
than the commencement of such negotiations,
166
the Secretary of State shall notify the Congress
in writing that the Secretary of State has begun
such negotiations and why it is important that
export controls on the items involved be main-
tained to avoid a significant risk to the foreign
policy, nonproliferation, or national security in-
terests of the United States.
(ii) Whenever the Secretary of State has
reason to believe that items subject to export
controls by the United States may become
available in fact from other countries to con-
trolled countries and that such availability can
be prevented or eliminated by means of negotia-
tions with such other countries, the Secretary of
State shall promptly initiate negotiations with
the governments of such other countries to pre-
vent such foreign availability.
(6) SHARING OF INFORMATION.—Each depart-
ment or agency of the United States, including any
intelligence agency, and all contractors with any
such department or agency, shall, upon the request
of the Secretary and consistent with the protection
of intelligence sources and methods, furnish informa-
tion to the Department of Commerce concerning for-
eign availability of items subject to export controls
167
under this title. Consistent with the protection of in-
telligence sources and methods and classification re-
strictions, each such department or agency shall
allow the Department of Commerce access to such
information from a laboratory or other facility with-
in such department or agency.
(7) CONGRESSIONAL
NOTIFICATION
AND
RE-
PORTING REQUIREMENTS.—The Secretary shall each
year notify the Congress of all petitions for relief
under this subsection and the status of all such peti-
tions.
(l) EXCEPTIONS FOR MEDICAL AND HUMANITARIAN
PURPOSES.—This title does not authorize controls on—
(1) medicine or medical supplies; or
(2) donations of items that are intended to
meet basic human needs, including food, educational
materials, seeds, hand tools, water resources equip-
ment, clothing and shelter materials, and basic
household supplies.
(m) SANCTITY OF EXISTING CONTRACTS AND LI-
CENSES.—
(1) IN GENERAL.—In the case of a control im-
posed under section 106 on the export of any items,
the President may not prohibit the export of those
items—
168
(A) in performance of a contract, agree-
ment, or other contractual commitment entered
into before the date on which the control is ini-
tially imposed, or the date on which the Presi-
dent reports to the Congress the President’s in-
tention to impose the control, whichever date
occurs first, or
(B) under a license or other authorization
issued under this title before the date on which
the control is initially imposed, or the date on
which the President reports to the Congress the
President’s intention to impose the control,
whichever date occurs first.
(2) EXCEPTION.—The prohibition in paragraph
(1) shall not apply if the President determines and
certifies to the Congress that—
(A) a breach of the peace poses a serious
and direct threat to the strategic interest of the
United States;
(B) the prohibition of exports under each
such contract, agreement, commitment, license,
or authorization will be directly instrumental in
remedying the situation posing the direct
threat; and