Sec. 101. Commerce Control List.
Sec. 102. Delegation of authority.
Sec. 103. Public information; consultation requirements.
Sec. 104. Right of export.
Sec. 105. Export control advisory committees.
Sec. 106. President’s Technology Export Council.
Sec. 107. Prohibition on charging fees.
TITLE II—NATIONAL SECURITY EXPORT CONTROLS
Subtitle A—Authority and Procedures
Sec. 201. Authority for national security export controls.
Sec. 202. National Security Control List.
Sec. 203. Country tiers.
Sec. 204. Incorporated parts and components.
Sec. 205. Petition process for modifying export status.
Subtitle B—Foreign Availability and Mass-Market Status
Sec. 211. Determination of foreign availability and mass-market status.
Sec. 212. Presidential set-aside of foreign availability status determination.
Sec. 213. Presidential set-aside of mass-market status determination.
Sec. 214. Office of Technology Evaluation.
TITLE III—FOREIGN POLICY EXPORT CONTROLS
Sec. 301. Authority for foreign policy export controls.
Sec. 302. Procedures for imposing controls.
Sec. 303. Criteria for foreign policy export controls.
Sec. 304. Presidential report before imposition of control.
Sec. 305. Imposition of controls.
Sec. 306. Deferral authority.
Sec. 307. Review, renewal, and termination.
Sec. 308. Termination of controls under this title.
Sec. 309. Compliance with international obligations.
Sec. 310. Designation of countries supporting international terrorism.
Sec. 311. Crime control instruments.
TITLE IV—PROCEDURES FOR EXPORT LICENSES AND
INTERAGENCY DISPUTE RESOLUTION
Sec. 401. Export license procedures.
Sec. 402. Interagency dispute resolution process.
TITLE V—INTERNATIONAL ARRANGEMENTS; FOREIGN BOYCOTTS;
SANCTIONS; AND ENFORCEMENT
Sec. 501. International arrangements.
Sec. 502. Foreign boycotts.
Sec. 503. Penalties.
Sec. 504. Missile proliferation control violations.
Sec. 505. Chemical and biological weapons proliferation sanctions.
Sec. 506. Enforcement.
Sec. 507. Administrative procedure.
TITLE VI—EXPORT CONTROL AUTHORITY AND REGULATIONS
Sec. 601. Export control authority and regulations.
Sec. 602. Confidentiality of information.
TITLE VII—MISCELLANEOUS PROVISIONS
Sec. 701. Annual report.
Sec. 702. Enhancement of congressional oversight of nuclear transfers to North
Korea.
Sec. 703. Procedures for consideration of joint resolutions.
Sec. 704. Technical and conforming amendments.
Sec. 705. Savings provisions.
SEC. 2. DEFINITIONS.
In this Act:
(1) AFFILIATE.—The term ‘‘affiliate’’ includes
both governmental entities and commercial entities
that are controlled in fact by the government of a
country.
(2) CONTROL
OR
CONTROLLED.—The terms
‘‘control’’ and ‘‘controlled’’ mean any requirement,
condition, authorization, or prohibition on the export
or reexport of an item.
(3) CONTROL LIST.—The term ‘‘Control List’’
means the Commerce Control List established under
section 101.
(4) CONTROLLED COUNTRY.—The term ‘‘con-
trolled country’’ means a country with respect to
which exports are controlled under section 201 or
301.
(5) CONTROLLED ITEM.—The term ‘‘controlled
item’’ means an item the export of which is con-
trolled under this Act.
(6) COUNTRY.—The term ‘‘country’’ means a
sovereign country or an autonomous customs terri-
tory.
(7) COUNTRY
SUPPORTING
INTERNATIONAL
TERRORISM.—The term ‘‘country supporting inter-
national terrorism’’ means a country designated by
the Secretary of State pursuant to section 310.
(8) DEPARTMENT.—The term ‘‘Department’’
means the Department of Commerce.
(9) EXPORT.—
(A) The term ‘‘export’’ means—
(i) an actual shipment, transfer, or
transmission of an item out of the United
States;
(ii) a transfer to any person of an
item either within the United States or
outside of the United States with the
knowledge or intent that the item will be
shipped, transferred, or transmitted to an
unauthorized recipient outside the United
States; or
(iii) a transfer of an item in the
United States to an embassy or affiliate of
a country, which shall be considered an ex-
port to that country.
(B) The term includes a reexport.
(10) FOREIGN
AVAILABILITY
STATUS.—The
term ‘‘foreign availability status’’ means the status
described in section 211(d)(1).
(11) FOREIGN
PERSON.—The term ‘‘foreign
person’’ means—
(A) an individual who is not—
(i) a United States citizen;
(ii) an alien lawfully admitted for per-
manent residence to the United States; or
(iii) a protected individual as defined
in section 274B(a)(3) of the Immigration
and 
Nationality 
Act. 
(8 
U.S.C.
1324b(a)(3));
(B) any corporation, partnership, business
association, society, trust, organization, or other
nongovernmental entity created or organized
under the laws of a foreign country or that has
its principal place of business outside the
United States; and
(C) any governmental entity of a foreign
country.
(12) ITEM.—
(A) IN
GENERAL.—The term ‘‘item’’
means any good, technology, or service.
(B) OTHER DEFINITIONS.—In this para-
graph:
(i) GOOD.—The term ‘‘good’’ means
any article, natural or manmade substance,
material, supply or manufactured product,
including inspection and test equipment,
including source code, and excluding tech-
nical data.
(ii) TECHNOLOGY.—The term ‘‘tech-
nology’’ means specific information that is
necessary for the development, production,
or use of an item, and takes the form of
technical data or technical assistance.
(iii) SERVICE.—The term ‘‘service’’
means any act of assistance, help or aid.
(13) MASS-MARKET STATUS.—The term ‘‘mass-
market status’’ means the status described in section
211(d)(2).
(14) MULTILATERAL
EXPORT
CONTROL
RE-
GIME.—The term ‘‘multilateral export control re-
gime’’ means an international agreement or arrange-
ment among two or more countries, including the
United States, a purpose of which is to coordinate
national export control policies of its members re-
garding certain items. The term includes regimes
such as the Australia Group, the Wassenaar Ar-
rangement, the Missile Technology Control Regime
(MTCR), and the Nuclear Suppliers’ Group Dual
Use Arrangement.
(15) NATIONAL SECURITY CONTROL LIST.—The
term ‘‘National Security Control List’’ means the
list established under section 202(a).
(16) PERSON.—The term ‘‘person’’ includes—
(A) any individual, or partnership, corpora-
tion, business association, society, trust, organi-
zation, or any other group created or organized
under the laws of a country; and
(B) any government, or any governmental
entity, including any governmental entity oper-
ating as a business enterprise.
(17) REEXPORT.—The term ‘‘reexport’’ means
the shipment, transfer, transshipment, or diversion
of items from one foreign country to another.
(18) 
SECRETARY.—The 
term 
‘‘Secretary’’
means the Secretary of Commerce.
(19) UNITED
STATES.—The term ‘‘United
States’’ means the States of the United States, the
District of Columbia, and any commonwealth, terri-
tory, dependency, or possession of the United States,
and includes the outer Continental Shelf, as defined
in section 2(a) of the Outer Continental Shelf Lands
Act (42 U.S.C. 1331(a)).
(20) UNITED
STATES
PERSON.—The term
‘‘United States person’’ means—
(A) any United States citizen, resident, or
national (other than an individual resident out-
side the United States who is employed by a
person other than a United States person);
(B) any domestic concern (including any
permanent domestic establishment of any for-
eign concern); and
(C) any foreign subsidiary or affiliate (in-
cluding any permanent foreign establishment)
of any domestic concern which is controlled in
fact by such domestic concern, as determined
under regulations prescribed by the President.
TITLE I—GENERAL AUTHORITY
SEC. 101. COMMERCE CONTROL LIST.
(a) IN GENERAL.—Under such conditions as the Sec-
retary may impose, consistent with the provisions of this
Act, the Secretary—
(1) shall establish and maintain a Commerce
Control List (in this Act referred to as the ‘‘Control
List’’) consisting of items the export of which are
subject to licensing or other authorization or re-
quirement; and
(2) may require any type of license, or other
authorization, including recordkeeping and report-
ing, appropriate to the effective and efficient imple-
mentation of this Act with respect to the export of
an item on the Control List or otherwise subject to
control under title II or III of this Act.
(b) TYPES
OF LICENSE
OR OTHER AUTHORIZA-
TION.—The types of license or other authorization re-
ferred to in subsection (a)(2) include the following:
(1) SPECIFIC EXPORTS.—A license that author-
izes a specific export.
(2) MULTIPLE EXPORTS.—A license that au-
thorizes multiple exports in lieu of a license for each
export.
(3) NOTIFICATION IN LIEU OF LICENSE.— A
notification in lieu of a license that authorizes a spe-
cific export or multiple exports subject to the condi-
tion that the exporter file with the Department ad-
vance notification of the intent to export in accord-
ance with regulations prescribed by the Secretary.
(4) LICENSE EXCEPTION.—Authority to export
an item on the Control List without prior license or
notification in lieu of a license.
(c) AFTER-MARKET SERVICE
AND REPLACEMENT
PARTS.—A license to export an item under this Act shall
not be required for an exporter to provide after-market
service or replacement parts in order to replace on a one-
for-one basis parts that were in an item that was lawfully
exported from the United States, unless—
(1) the Secretary determines that such license
is required to export such parts; or
(2) the after-market service or replacement
parts would materially enhance the capability of an
item which was the basis for the item being con-
trolled.
(d) INCIDENTAL TECHNOLOGY.—A license or other
authorization to export an item under this Act includes
authorization to export technology related to the item, if
the level of the technology does not exceed the minimum
necessary to install, repair, maintain, inspect, operate, or
use the item.
(e) REGULATIONS.—The Secretary may prescribe
such regulations as are necessary to carry out the provi-
sions of this Act.
SEC. 102. DELEGATION OF AUTHORITY.
(a) IN GENERAL.—Except as provided in subsection
(b) and subject to the provisions of this Act, the President
may delegate the power, authority, and discretion con-
ferred upon the President by this Act to such depart-
ments, agencies, and officials of the Government as the
President considers appropriate.
(b) EXCEPTIONS.—
(1) DELEGATION TO APPOINTEES CONFIRMED
BY SENATE.—No authority delegated to the Presi-
dent under this Act may be delegated by the Presi-
dent to, or exercised by, any official of any depart-
ment or agency the head of which is not appointed
by the President, by and with the advice and consent
of the Senate.
(2) OTHER LIMITATIONS.—The President may
not delegate or transfer the President’s power, au-
thority, or discretion to overrule or modify any rec-
ommendation or decision made by the Secretary, the
Secretary of Defense, or the Secretary of State
under this Act.
SEC. 103. PUBLIC INFORMATION; CONSULTATION REQUIRE-
MENTS.
(a) PUBLIC INFORMATION.—The Secretary shall
keep the public fully informed of changes in export control
policy and procedures instituted in conformity with this
Act.
(b) CONSULTATION WITH PERSONS AFFECTED.—
The Secretary shall consult regularly with representatives
of a broad spectrum of enterprises, labor organizations,
and citizens interested in or affected by export controls
in order to obtain their views on United States export con-
trol policy and the foreign availability or mass-market sta-
tus of controlled items.
SEC. 104. RIGHT OF EXPORT.
No license or other authorization to export may be
required under this Act, or under regulations issued under
this Act, except to carry out the provisions of this Act.
SEC. 105. EXPORT CONTROL ADVISORY COMMITTEES.
(a) APPOINTMENT.—Upon the Secretary’s own initia-
tive or upon the written request of representatives of a
substantial segment of any industry which produces any
items subject to export controls under this Act or being
considered for such controls, the Secretary may appoint
export control advisory committees with respect to any
such items. Each such committee shall consist of rep-
resentatives of United States industry and Government of-
ficials, including officials from the Departments of Com-
merce, Defense, and State, and other appropriate depart-
ments and agencies of the Government. The Secretary
shall permit the widest possible participation by the busi-
ness community on the export control advisory commit-
tees.
(b) FUNCTIONS.—
(1) IN
GENERAL.—Export control advisory
committees appointed under subsection (a) shall ad-
vise and assist the Secretary, and any other depart-
ment, agency, or official of the Government carrying
out functions under this Act, on actions (including
all aspects of controls imposed or proposed) designed
to carry out the provisions of this Act concerning the
items with respect to which such export control advi-
sory committees were appointed.
(2) OTHER CONSULTATIONS.—Nothing in para-
graph (1) shall prevent the United States Govern-
ment from consulting, at any time, with any person
representing an industry or the general public, re-
gardless of whether such person is a member of an
export control advisory committee. Members of the
public shall be given a reasonable opportunity, pur-
suant to regulations prescribed by the Secretary, to
present information to such committees.
(c) REIMBURSEMENT OF EXPENSES.—Upon the re-
quest of any member of any export control advisory com-
mittee appointed under subsection (a), the Secretary may,
if the Secretary determines it to be appropriate, reimburse
such member for travel, subsistence, and other necessary
expenses incurred by such member in connection with the
duties of such member.
closed unless the Secretary determines that the with-
holding thereof is contrary to the national interest.
SEC. 106. PRESIDENT’S TECHNOLOGY EXPORT COUNCIL.
The President may establish a President’s Tech-
nology Export Council to advise the President on the im-
plementation, operation, and effectiveness of this Act.
SEC. 107. PROHIBITION ON CHARGING FEES.
No fee may be charged in connection with the submis-
sion or processing of an application for an export license
under this Act.
TITLE II—NATIONAL SECURITY
EXPORT CONTROLS
Subtitle A—Authority and
Procedures
SEC. 201. AUTHORITY FOR NATIONAL SECURITY EXPORT
CONTROLS.
(a) AUTHORITY.—
(1) IN GENERAL.—In order to carry out the
purposes set forth in subsection (b), the President
may, in accordance with the provisions of this Act,
prohibit, curtail, or require a license, or other au-
thorization for the export of any item subject to the
jurisdiction of the United States or exported by any
person subject to the jurisdiction of the United
States. The President may also require record-
keeping and reporting with respect to the export of
such item.
(2) EXERCISE OF AUTHORITY.—The authority
contained in this subsection shall be exercised by the
Secretary, in consultation with the Secretary of De-
fense, the intelligence agencies, and such other de-
partments and agencies as the Secretary considers
appropriate.
(b) PURPOSES.—The purposes of national security
export controls are the following:
(1) To restrict the export of items that would
contribute to the military potential of countries so as
to prove detrimental to the national security of the
United States, its allies or countries sharing com-
mon strategic objectives with the United States.
(2) To stem the proliferation of weapons of
mass destruction, and the means to deliver them,
and other significant military capabilities by—
(A) leading international efforts to control
the proliferation of chemical and biological
weapons, nuclear explosive devices, missile deliv-
ery systems, key-enabling technologies, and
other significant military capabilities;
(B) controlling involvement of United
States persons in, and contributions by United
States persons to, foreign programs intended to
develop weapons of mass destruction, missiles,
and other significant military capabilities, and
the means to design, test, develop, produce,
stockpile, or use them; and
(C) implementing international treaties or
other agreements or arrangements concerning
controls on exports of designated items, reports
on the production, processing, consumption,
and exports and imports of such items, and
compliance with verification programs.
(3) To deter acts of international terrorism.
(c) END USE AND END USER CONTROLS.—Notwith-
standing any other provision of this title, controls may be
imposed, based on the end use or end user, on the export
of any item, that could contribute to the proliferation of
weapons of mass destruction or the means to deliver them.
(d) ENHANCED CONTROLS.—
(1) IN GENERAL.—Notwithstanding any other
provisions of this title, the President may determine
that applying the provisions of section 204 or 211
with respect to an item on the National Security
Control List would constitute a significant threat to
the national security of the United States and that
such item requires enhanced control. If the Presi-
dent determines that enhanced control should apply
to such item, the item may be excluded from the
provisions of section 204, section 211, or both, until
such time as the President shall determine that such
enhanced control should no longer apply to such
item. The President may not delegate the authority
provided for in this subsection.
(2) REPORT
TO
CONGRESS.—The President
shall promptly report any determination described in
paragraph (1), along with the specific reasons for
the determination, to the Committee on Banking,
Housing, and Urban Affairs of the Senate and the
Committee on International Relations of the House
of Representatives.
SEC. 202. NATIONAL SECURITY CONTROL LIST.
(a) ESTABLISHMENT OF LIST.—
(1) ESTABLISHMENT.—The Secretary shall es-
tablish and maintain a National Security Control
List as part of the Control List.
(2) CONTENTS.—The National Security Control
List shall be composed of a list of items the export
of which is controlled for national security purposes
under this title.
(3) IDENTIFICATION OF ITEMS FOR NATIONAL
SECURITY CONTROL LIST.—The Secretary, with the
concurrence of the Secretary of Defense and in con-
sultation with the head of any other department or
agency of the United States that the Secretary con-
siders appropriate, shall identify the items to be in-
cluded on the National Security Control List pro-
vided that the National Security Control List shall,
on the date of enactment of this Act, include all of
the items on the Commerce Control List controlled
on the day before the date of enactment of this Act
to protect the national security of the United States,
to prevent the proliferation of weapons of mass de-
struction and the means to deliver them, and to
deter acts of international terrorism. The Secretary
shall review on a continuing basis and, with the con-
currence of the Secretary of Defense and in con-
sultation with the head of any other department or
agency of the United States that the Secretary con-
siders appropriate, adjust the National Security
Control List to add items that require control under
this section and to remove items that no longer war-
rant control under this section.
(b) RISK ASSESSMENT.—
(1) REQUIREMENT.—In establishing and main-
taining the National Security Control List, the risk
factors set forth in paragraph (2) shall be consid-
ered, weighing national security concerns and eco-
nomic costs.
(2) RISK FACTORS.—The risk factors referred
to in paragraph (1), with respect to each item, are
as follows:
(A) The characteristics of the item.
(B) The threat, if any, to the United
States or the national security interest of the
United States from the misuse or diversion of
such item.
(C) The effectiveness of controlling the
item for national security purposes of the
United States, taking into account mass-market
status, foreign availability, and other relevant
factors.
(D) The threat to the national security in-
terests of the United States if the item is not
controlled.
(E) Any other appropriate risk factors.
(c) REPORT ON CONTROL LIST.—Not later than 90
days after the date of enactment of this Act, the Secretary
shall submit a report to Congress which lists all items on
the Commerce Control List controlled on the day before
the date of enactment of this Act to protect the national
security of the United States, to prevent the proliferation
of weapons of mass destruction and the means to deliver
them, and to deter acts of international terrorism, not in-
cluded on the National Security Control List pursuant to
the provisions of this Act.
SEC. 203. COUNTRY TIERS.
(a) IN GENERAL.—
(1) ESTABLISHMENT
AND
ASSIGNMENT.—In
administering export controls for national security
purposes under this title, the President shall, not
later than 120 days after the date of enactment of
this Act—
(A) establish and maintain a country
tiering system in accordance with subsection
(b); and
(B) based on the assessments required
under subsection (c), assign each country to an
appropriate tier for each item or group of items
the export of which is controlled for national se-
curity purposes under this title.
(2) CONSULTATION.—The establishment and
assignment of country tiers under this section shall
be made after consultation with the Secretary, the
Secretary of Defense, the Secretary of State, the in-
telligence agencies, and such other departments and
agencies as the President considers appropriate.
(3) REDETERMINATION
AND
REVIEW
OF
AS-
SIGNMENTS.—The President may redetermine the
assignment of a country to a particular tier at any
time and shall review and, as the President con-
siders appropriate, reassign country tiers on an on-
going basis. The Secretary shall provide notice of
any such reassignment to the Committee on Bank-
ing, Housing, and Urban Affairs of the Senate and
the Committee on International Relations of the
House of Representatives.
(4) EFFECTIVE DATE OF TIER ASSIGNMENT.—
An assignment of a country to a particular tier shall
take effect on the date on which notice of the assign-
ment is published in the Federal Register.
(b) TIERS.—
(1) IN GENERAL.—The President shall establish
a country tiering system consisting of not less than
3 tiers for purposes of this section.
(2) RANGE.—Countries that represent the low-
est risk of diversion or misuse of an item on the Na-
tional Security Control List shall be assigned to the
lowest tier. Countries that represent the highest risk
of diversion or misuse of an item on the National
Security Control List shall be assigned to the high-
est tier.
(3) OTHER COUNTRIES.—Countries that fall be-
tween the lowest and highest risk to the national se-
curity interest of the United States with respect to
the risk of diversion or misuse of an item on the Na-
tional Security Control List shall be assigned to a
tier other than the lowest or highest tier, based on
the assessments required under subsection (c).
(c) ASSESSMENTS.—The President shall make an as-
sessment of each country in assigning a country tier tak-
ing into consideration risk factors including the following:
(1) The present and potential relationship of
the country with the United States.
(2) The present and potential relationship of
the country with countries friendly to the United
States and with countries hostile to the United
States.
(3) The country’s capabilities regarding chem-
ical, biological, and nuclear weapons and the coun-
try’s membership in, and level of compliance with,
relevant multilateral export control regimes.
(4) The country’s capabilities regarding missile
systems and the country’s membership in, and level
of compliance with, relevant multilateral export con-
trol regimes.
(5) Whether the country, if a NATO or major
non-NATO ally with whom the United States has
entered into a free trade agreement as of January
1, 1986, controls exports in accordance with the cri-
teria and standards of a multilateral export control
regime as defined in section 2(14) pursuant to an
international agreement to which the United States
is a party.
(6) The country’s other military capabilities
and the potential threat posed by the country to the
United States or its allies.
(7) The effectiveness of the country’s export
control system.
(8) The level of the country’s cooperation with
United States export control enforcement and other
efforts.
(9) The risk of export diversion by the country
to a higher tier country.
(10) The designation of the country as a coun-
try supporting international terrorism under section
310.
(d) TIER APPLICATION.—The country tiering system
shall be used in the determination of license requirements
pursuant to section 201(a)(1).
SEC. 204. INCORPORATED PARTS AND COMPONENTS.
(a) EXPORT OF ITEMS CONTAINING CONTROLLED
PARTS AND COMPONENTS.—Controls may not be imposed
under this title or any other provision of law on an item
solely because the item contains parts or components sub-
ject to export controls under this title, if the parts or
components—
(1) are essential to the functioning of the item,
(2) are customarily included in sales of the item
in countries other than controlled countries, and
(3) comprise 25 percent or less of the total
value of the item,
unless the item itself, if exported, would by virtue of the
functional characteristics of the item as a whole make a
significant contribution to the military or proliferation po-
tential of a controlled country or end user which would
prove detrimental to the national security of the United
States, or unless failure to control the item would be con-
trary to the provisions of section 201(c), section 201(d),
or section 309 of this Act.
(b) REEXPORTS OF FOREIGN-MADE ITEMS INCOR-
PORATING UNITED STATES CONTROLLED CONTENT.—
(1) IN GENERAL.—No authority or permission
may be required under this title to reexport to a
country an item that is produced in a country other
than the United States and incorporates parts or
components that are subject to the jurisdiction of
the United States, if the value of the controlled
United States content of the item produced in such
other country is 25 percent or less of the total value
of the item; except that in the case of reexports of
an item to a country designated as a country sup-
porting international terrorism pursuant to section
310, controls may be maintained if the value of the
controlled United States content is more than 10
percent of the total value of the item.
(2) DEFINITION
OF
CONTROLLED
UNITED
STATES CONTENT.—For purposes of this paragraph,
the term ‘‘controlled United States content’’ of an
item means those parts or components that—
(A) are subject to the jurisdiction of the
United States;
(B) are incorporated into the item; and
(C) would, at the time of the reexport, re-
quire a license under this title if exported from
the United States to a country to which the
item is to be reexported.
SEC. 205. PETITION PROCESS FOR MODIFYING EXPORT
STATUS.
(a) ESTABLISHMENT.—The Secretary shall establish
a process for interested persons to petition the Secretary
to change the status of an item on the National Security
Control List.
(b) EVALUATIONS AND DETERMINATIONS.—Evalua-
tions and determinations with respect to a petition filed
pursuant to this section shall be made in accordance with
section 202.
Subtitle B—Foreign Availability
and Mass-Market Status
SEC. 211. DETERMINATION OF FOREIGN AVAILABILITY AND
MASS-MARKET STATUS.
(a) IN GENERAL.—The Secretary shall—
(1) on a continuing basis,
(2) upon a request from the Office of Tech-
nology Evaluation, or
(3) upon receipt of a petition filed by an inter-
ested party,
review and determine the foreign availability and the
mass-market status of any item the export of which is con-
trolled under this title.
(b) PETITION AND CONSULTATION.—
(1) IN GENERAL.—The Secretary shall establish
a process for an interested party to petition the Sec-
retary for a determination that an item has a for-
eign availability or mass-market status. In evalu-
ating and making a determination with respect to a
petition filed under this section, the Secretary shall
consult with the Secretary of Defense, Secretary of
State, and other appropriate Government agencies
and with the Office of Technology Evaluation (estab-
lished pursuant to section 214).
(2) TIME FOR MAKING DETERMINATION.—The
Secretary shall, within 6 months after receiving a
petition described in subsection (a)(3), determine
whether the item that is the subject of the petition
has foreign availability or mass-market status and
shall notify the petitioner of the determination.
(c) RESULT OF DETERMINATION.—In any case in
which the Secretary determines, in accordance with proce-
dures and criteria which the Secretary shall by regulation
establish, that an item described in subsection (a) has—
(1) a foreign availability status, or
(2) a mass-market status,
the Secretary shall notify the President (and other appro-
priate departments and agencies) and publish the notice
of the determination in the Federal Register. The Sec-
retary’s determination shall become final 30 days after the
date the notice is published, the item shall be removed
from the National Security Control List, and a license or
other authorization shall not be required under this title
with respect to the item, unless the President makes a
determination described in section 212 or 213, or takes
action under section 309, with respect to the item in that
30-day period.
(d) CRITERIA FOR DETERMINING FOREIGN AVAIL-
ABILITY AND MASS-MARKET STATUS.—
(1) FOREIGN AVAILABILITY STATUS.—The Sec-
retary shall determine that an item has foreign
availability status under this subtitle, if the item (or
a substantially identical or directly competitive
item)—
(A) is available to controlled countries
from sources outside the United States, includ-
ing countries that participate with the United
States in multilateral export controls;
(B) can be acquired at a price that is not
excessive when compared to the price at which
a controlled country could acquire such item
from sources within the United States in the
absence of export controls; and
(C) is available in sufficient quantity so
that the requirement of a license or other au-
thorization with respect to the export of such
item is or would be ineffective.
(2) MASS-MARKET STATUS.—
(A) IN GENERAL.—In determining whether
an item has mass-market status under this sub-
title, the Secretary shall consider the following
criteria with respect to the item (or a substan-
tially identical or directly competitive item):
(i) The production and availability for
sale in a large volume to multiple potential
purchasers.
(ii) 
The 
widespread 
distribution
through normal commercial channels, such
as retail stores, direct marketing cata-
logues, electronic commerce, and other
channels.
(iii) The conduciveness to shipment
and delivery by generally accepted commer-
cial means of transport.
(iv) The use for the item’s normal in-
tended purpose without substantial and
specialized service provided by the manu-
facturer, distributor, or other third party.
(B) DETERMINATION BY SECRETARY.—If
the Secretary finds that the item (or a substan-
tially identical or directly competitive item)
meets the criteria set forth in subparagraph
(A), the Secretary shall determine that the item
has mass-market status.
(3) SPECIAL
RULES.—For purposes of this
subtitle—
(A) SUBSTANTIALLY
IDENTICAL
ITEM.—
The determination of whether an item in rela-
tion to another item is a substantially identical
item shall include a fair assessment of end-uses,
the properties, nature, and quality of the item.
(B) DIRECTLY COMPETITIVE ITEM.—
(i) IN GENERAL.—The determination
of whether an item in relation to another
item is a directly competitive item shall in-
clude a fair assessment of whether the
item, although not substantially identical
in its intrinsic or inherent characteristics,
is substantially equivalent for commercial
purposes and may be adapted for substan-
tially the same uses.
(ii) EXCEPTION.—An item is not di-
rectly competitive with a controlled item if
the item is substantially inferior to the
controlled item with respect to characteris-
tics that resulted in the export of the item
being controlled.
SEC. 212. PRESIDENTIAL SET-ASIDE OF FOREIGN AVAIL-
ABILITY STATUS DETERMINATION.
(a) CRITERIA FOR PRESIDENTIAL SET-ASIDE.—
(1) GENERAL CRITERIA.—
(A) IN GENERAL.—If the President deter-
mines that—
(i) decontrolling or failing to control
an item constitutes a threat to the national
security of the United States, and export
controls on the item would advance the na-
tional security interests of the United
States,
(ii) there is a high probability that the
foreign availability of an item will be elimi-
nated through international negotiations
within a reasonable period of time taking
into account the characteristics of the
item, or
(iii) United States controls on the
item have been imposed under section 309,
the President may set aside the Secretary’s de-
termination of foreign availability status with
respect to the item.
(B) 
NONDELEGATION.—The 
President
may not delegate the authority provided for in
this paragraph.
(2) REPORT
TO
CONGRESS.—The President
shall promptly—
(A) report any set-aside determination de-
scribed in paragraph (1), along with the specific
reasons for the determination, to the Committee
on Banking, Housing, and Urban Affairs of the
Senate and the Committee on International Re-
lations of the House of Representatives; and
(B) publish the determination in the Fed-
eral Register.
(b) PRESIDENTIAL
ACTION
IN
CASE
OF
SET-
ASIDE.—
(1) IN GENERAL.—
(A) NEGOTIATIONS.—In any case in which
export controls are maintained on an item be-
cause the President has made a determination
under subsection (a), the President shall ac-
tively pursue negotiations with the governments
of the appropriate foreign countries for the pur-
pose of eliminating such availability.
(B) REPORT
TO
CONGRESS.—Not later
than the date the President begins negotiations,
the President shall notify in writing the Com-
mittee on Banking, Housing, and Urban Affairs
of the Senate and the Committee on Inter-
national Relations of the House of Representa-
tives that the President has begun such nego-
tiations and why the President believes it is im-
portant to the national security that export con-
trols on the item involved be maintained.
(2) PERIODIC REVIEW OF DETERMINATION.—
The President shall review a determination described
in subsection (a) at least every 6 months. Promptly
after each review is completed, the Secretary shall
submit to the committees of Congress referred to in
paragraph (1)(B) a report on the results of the re-
view, together with the status of international nego-
tiations to eliminate the foreign availability of the
item.
(3) 
EXPIRATION
OF
PRESIDENTIAL
SET-
ASIDE.—A determination by the President described
in subsection (a)(1)(A) (i) or (ii) shall cease to apply
with respect to an item on the earlier of—
(A) the date that is 6 months after the date
on which the determination is made under sub-
section (a), if the President has not commenced
international negotiations to eliminate the for-
eign availability of the item within that 6-month
period;
(B) the date on which the negotiations de-
scribed in paragraph (1) have terminated with-
out achieving an agreement to eliminate foreign
availability;
(C) the date on which the President deter-
mines that there is not a high probability of
eliminating foreign availability of the item
through negotiation; or
(D) the date that is 18 months after the
date on which the determination described in
subsection (a)(1)(A) (i) or (ii) is made if the
President has been unable to achieve an agree-
ment to eliminate foreign availability within
that 18-month period.
(4) ACTION ON EXPIRATION OF PRESIDENTIAL
SET-ASIDE.—Upon the expiration of a Presidential
set-aside under paragraph (3) with respect to an
item, the Secretary shall not require a license or
other authorization to export the item.
SEC. 213. PRESIDENTIAL SET-ASIDE OF MASS-MARKET STA-
TUS DETERMINATION.
(a) CRITERIA FOR PRESIDENTIAL SET-ASIDE.—
(1) GENERAL CRITERIA.—If the President de-
termines that—
(A)(i) decontrolling or failing to control an
item constitutes a serious threat to the national
security of the United States, and
(ii) export controls on the item would ad-
vance the national security interests of the
United States, or
(B) United States controls on the item
have been imposed under section 309,
the President may set aside the Secretary’s deter-
mination of mass-market status with respect to the
item.
(2) NONDELEGATION.—The President may not
delegate the authority provided for in this sub-
section.
(b) PRESIDENTIAL
ACTION
IN
CASE
OF
SET-
ASIDE.—
(1) IN GENERAL.—In any case in which export
controls are maintained on an item because the
President has made a determination under sub-
section (a), the President shall promptly report the
determination, along with the specific reasons for
the determination, to the Committee on Banking,
Housing, and Urban Affairs of the Senate and the
Committee on International Relations of the House
of Representatives, and shall publish notice of the
determination in the Federal Register not later than
30 days after the Secretary publishes notice of the
Secretary’s determination that an item has mass-
market status.
(2) PERIODIC REVIEW OF DETERMINATION.—
The President shall review a determination made
under subsection (a) at least every 6 months.
Promptly after each review is completed, the Sec-
retary shall submit a report on the results of the re-
view to the Committee on Banking, Housing, and
Urban Affairs of the Senate and the Committee on
International Relations of the House of Representa-
tives.
SEC. 214. OFFICE OF TECHNOLOGY EVALUATION.
(a) IN GENERAL.—
(1) ESTABLISHMENT
OF
OFFICE.—The Sec-
retary shall establish in the Department of Com-
merce an Office of Technology Evaluation (in this
section referred to as the ‘‘Office’’), which shall be
under the direction of the Secretary. The Office
shall be responsible for gathering, coordinating, and
analyzing all the necessary information in order for
the Secretary to make determinations of foreign
availability and mass-market status under this Act.
(2) STAFF.—
(A) IN GENERAL.—The Secretary shall en-
sure that the Office include persons to carry
out the responsibilities set forth in subsection
(b) of this section that have training, expertise,
and experience in—
(i) economic analysis;
(ii) the defense industrial base;
(iii) technological developments; and
(iv) national security and foreign pol-
icy export controls.
(B) DETAILEES.—In addition to employees
of the Department of Commerce, the Secretary
may accept on nonreimbursable detail to the
Office, employees of the Departments of De-
fense, State, and Energy and other departments
and agencies as appropriate.
(b) RESPONSIBILITIES.—The Office shall be respon-
sible for—
(1) conducting foreign availability assessments
to determine whether a controlled item is available
to controlled countries and whether requiring a li-
cense, or denial of a license for the export of such
item, is or would be ineffective;
(2) conducting mass-market assessments to de-
termine whether a controlled item is available to
controlled countries because of the mass-market sta-
tus of the item;
(3) monitoring and evaluating worldwide tech-
nological developments in industry sectors critical to
the national security interests of the United States
to determine foreign availability and mass-market
status of controlled items;
(4) monitoring and evaluating multilateral ex-
port control regimes and foreign government export
control policies and practices that affect the national
security interests of the United States;
(5) conducting assessments of United States in-
dustrial sectors critical to the United States defense
industrial base and how the sectors are affected by
technological developments, technology transfers,
and foreign competition; and
(6) conducting assessments of the impact of
United States export control policies on—
(A) United States industrial sectors critical
to the national security interests of the United
States; and
(B) the United States economy in general.
(c) REPORTS TO CONGRESS.—The Secretary shall
make available to the Committee on International Rela-
tions of the House of Representatives and the Committee
on Banking, Housing, and Urban Affairs of the Senate
as part of the Secretary’s annual report required under
section 701 information on the operations of the Office,
and on improvements in the Government’s ability to assess
foreign availability and mass-market status, during the
fiscal year preceding the report, including information on
the training of personnel, and the use of Commercial Serv-
ice Officers of the United States and Foreign Commercial
Service to assist in making determinations. The informa-
tion shall also include a description of determinations
made under this Act during the preceding fiscal year that
foreign availability or mass-market status did or did not
exist (as the case may be), together with an explanation
of the determinations.
(d) SHARING OF INFORMATION.—Each department
or agency of the United States, including any intelligence
agency, and all contractors with any such department or
agency, shall, consistent with the need to protect intel-
ligence sources and methods, furnish information to the
Office concerning foreign availability and the mass-market
status of items subject to export controls under this Act.
TITLE III—FOREIGN POLICY
EXPORT CONTROLS
SEC. 301. AUTHORITY FOR FOREIGN POLICY EXPORT CON-
TROLS.
(a) AUTHORITY.—
(1) IN GENERAL.—In order to carry out the
purposes set forth in subsection (b), the President
may, in accordance with the provisions of this Act,
prohibit, curtail, or require a license, other author-
ization, recordkeeping, or reporting for the export of
any item subject to the jurisdiction of the United
States or exported by any person subject to the ju-
risdiction of the United States.
(2) EXERCISE OF AUTHORITY.—The authority
contained in this subsection shall be exercised by the
Secretary, in consultation with the Secretary of
State and such other departments and agencies as
the Secretary considers appropriate.
(b) PURPOSES.—The purposes of foreign policy ex-
port controls are the following:
(1) To promote the foreign policy objectives of
the United States, consistent with the purposes of
this section and the provisions of this Act.
(2) To promote international peace, stability,
and respect for fundamental human rights.
(3) To use export controls to deter and punish
acts of international terrorism and to encourage
other countries to take immediate steps to prevent
the use of their territories or resources to aid, en-
courage, or give sanctuary to those persons involved
in directing, supporting, or participating in acts of
international terrorism.
(c) FOREIGN PRODUCTS.—No authority or permis-
sion may be required under this title to reexport to a coun-
try an item that is produced in a country other than the
United States and incorporates parts or components that
are subject to the jurisdiction of the United States, except
that in the case of reexports of an item to a country des-
ignated as a country supporting international terrorism
pursuant to section 310, controls may be maintained if
the value of the controlled United States content is more
than 10 percent of the value of the item.
(d) CONTRACT SANCTITY.—
(1) IN GENERAL.—The President may not pro-
hibit the export of any item under this title if that
item is to be exported—
(A) in performance of a binding contract,
agreement, or other contractual commitment
entered into before the date on which the Presi-
dent reports to Congress the President’s inten-
tion to impose controls on that item under this
title; or
(B) under a license or other authorization
issued under this Act before the earlier of the
date on which the control is initially imposed or
the date on which the President reports to Con-
gress the President’s intention to impose con-
trols under this title.
(2) EXCEPTION.—The prohibition contained in
paragraph (1) shall not apply in any case in which
the President determines and certifies to the Com-
mittee on Banking, Housing, and Urban Affairs of
the Senate and the Committee on International Re-
lations of the House of Representatives that—
(A) there is a serious threat to a foreign
policy interest of the United States;
(B) the prohibition of exports under each
binding contract, agreement, commitment, li-
cense, or authorization will be instrumental in
remedying the situation posing the serious
threat; and
(C) the export controls will be in effect
only as long as the serious threat exists.
SEC. 302. PROCEDURES FOR IMPOSING CONTROLS.
(a) NOTICE.—
(1) INTENT TO IMPOSE FOREIGN POLICY EX-
PORT CONTROL.—Except as provided in section 306,
not later than 45 days before imposing or imple-
menting an export control under this title, the Presi-
dent shall publish in the Federal Register—
(A) a notice of intent to do so; and
(B) provide for a period of not less than
30 days for any interested person to submit
comments on the export control proposed under
this title.
(2) PURPOSES OF NOTICE.—The purposes of
the notice are—
(A) to provide an opportunity for the for-
mulation of an effective export control policy
under this title that advances United States
economic and foreign policy interests; and
(B) to provide an opportunity for negotia-
tions to achieve the purposes set forth in sec-
tion 301(b).
(b) NEGOTIATIONS.—During the 45-day period that
begins on the date of notice described in subsection (a),
the President may negotiate with the government of the
foreign country against which the export control is pro-
posed in order to resolve the reasons underlying the pro-
posed export control.
(c) CONSULTATION.—
(1) REQUIREMENT.—The President shall con-
sult with the Committee on Banking, Housing, and
Urban Affairs of the Senate and the Committee on
International Relations of the House of Representa-
tives regarding any export control proposed under
this title and the efforts to achieve or increase multi-
lateral cooperation on the issues or problems under-
lying the proposed export control.
(2) CLASSIFIED
CONSULTATION.—The con-
sultations described in paragraph (1) may be con-
ducted on a classified basis if the Secretary con-
siders it necessary.
SEC. 303. CRITERIA FOR FOREIGN POLICY EXPORT CON-
TROLS.
Each export control imposed by the President under
this title shall—
(1) have clearly stated and specific United
States foreign policy objectives;
(2) have objective standards for evaluating the
success or failure of the export control;
(3) include an assessment by the President
that—
(A) the export control is likely to achieve
such objectives and the expected time for
achieving the objectives; and
(B) the achievement of the objectives of
the export control outweighs any potential costs
of the export control to other United States
economic, foreign policy, humanitarian, or na-
tional security interests;
(4) be targeted narrowly; and
(5) seek to minimize any adverse impact on the
humanitarian activities of United States and foreign
nongovernmental organizations in the country sub-
ject to the export control.
SEC. 304. PRESIDENTIAL REPORT BEFORE IMPOSITION OF
CONTROL.
(a) REQUIREMENT.—Before imposing an export con-
trol under this title, the President shall submit to the
Committee on Banking, Housing, and Urban Affairs of
the Senate and the Committee on International Relations
of the House of Representatives a report on the proposed
export control. The report may be provided on a classified
basis if the Secretary considers it necessary.
(b) CONTENT.—The report shall contain a descrip-
tion and assessment of each of the criteria described in
section 303. In addition, the report shall contain a descrip-
tion and assessment of—
(1) any diplomatic and other steps that the
United States has taken to accomplish the intended
objective of the proposed export control;
(2) unilateral export controls imposed, and
other measures taken, by other countries to achieve
the intended objective of the proposed export con-
trol;
(3) the likelihood of multilateral adoption of
comparable export controls;
(4) alternative measures to promote the same
objectives and the likelihood of their potential suc-
cess;
(5) any United States obligations under inter-
national trade agreements, treaties, or other inter-
national arrangements, with which the proposed ex-
port control may conflict;
(6) the likelihood that the proposed export con-
trol could lead to retaliation against United States
interests;
(7) the likely economic impact of the proposed
export control on the United States economy, United
States international trade and investment, and
United States agricultural interests, commercial in-
terests, and employment; and
(8) a conclusion that the probable achievement
of the objectives of the proposed export control out-
weighs any likely costs to United States economic,
foreign policy, humanitarian, or national security in-
terests, including any potential harm to the United
States agricultural and business firms and to the
international reputation of the United States as a
reliable supplier of goods, services, or technology.
SEC. 305. IMPOSITION OF CONTROLS.
The President may impose an export control under
this title after the submission of the report required under
section 304 and publication in the Federal Register of a
notice of the imposition of the export control.
SEC. 306. DEFERRAL AUTHORITY.
(a) AUTHORITY.—The President may defer compli-
ance with any requirement contained in section 302(a),
304, or 305 in the case of a proposed export control if—
(1) the President determines that a deferral of
compliance with the requirement is in the national
interest of the United States; and
(2) the requirement is satisfied not later than
60 days after the date on which the export control
is imposed under this title.
(b) TERMINATION OF CONTROL.—An export control
with respect to which a deferral has been made under sub-
section (a) shall terminate 60 days after the date the ex-
port control is imposed unless all requirements have been
satisfied before the expiration of the 60-day period.
SEC. 307. REVIEW, RENEWAL, AND TERMINATION.
(a) RENEWAL AND TERMINATION.—
(1) IN GENERAL.—Any export control imposed
under this title shall terminate on March 31 of each
renewal year unless the President renews the export
control on or before such date. For purposes of this
section, the term ‘‘renewal year’’ means 2003 and
every 2 years thereafter.
(2) EXCEPTION.—This section shall not apply
to an export control imposed under this title that—
(A) is required by law;
(B) is targeted against any country des-
ignated as a country supporting international
terrorism pursuant to section 310; or
(C) has been in effect for less than 1 year
as of February 1 of a renewal year.
(b) REVIEW.—
(1) IN GENERAL.—Not later than February 1
of each renewal year, the President shall review all
export controls in effect under this title.
(2) CONSULTATION.—
(A) REQUIREMENT.—Before completing a
review under paragraph (1), the President shall
consult with the Committee on Banking, Hous-
ing, and Urban Affairs of the Senate and the
Committee on International Relations of the
House of Representative regarding each export
control that is being reviewed.
(B) 
CLASSIFIED
CONSULTATION.—The
consultations may be conducted on a classified
basis if the Secretary considers it necessary.
(3) PUBLIC COMMENT.—In conducting the re-
view of each export control under paragraph (1), the
President shall provide a period of not less than 30
days for any interested person to submit comments
on renewal of the export control. The President shall
publish notice of the opportunity for public comment
in the Federal Register not less than 45 days before
the review is required to be completed.
(c) REPORT TO CONGRESS.—
(1) REQUIREMENT.—Before renewing an export
control imposed under this title, the President shall
submit to the committees of Congress referred to in
subsection (b)(2)(A) a report on each export control
that the President intends to renew.
(2) FORM AND CONTENT OF REPORT.—The re-
port may be provided on a classified basis if the Sec-
retary considers it necessary. Each report shall con-
tain the following:
(A) A clearly stated explanation of the spe-
cific United States foreign policy objective that
the existing export control was intended to
achieve.
(B) An assessment of—
(i) the extent to which the existing ex-
port control achieved its objectives before
renewal based on the objective criteria es-
tablished for evaluating the export control;
and
(ii) the reasons why the existing ex-
port control has failed to fully achieve its
objectives and, if renewed, how the export
control will achieve that objective before
the next renewal year.
(C) An updated description and assess-
ment of—
(i) each of the criteria described in
section 303, and
(ii) each matter required to be re-
ported under section 304(b) (1) through
(8).
(3) RENEWAL
OF
EXPORT
CONTROL.—The
President may renew an export control under this
title after submission of the report described in
paragraph (2) and publication of notice of renewal
in the Federal Register.
SEC. 308. TERMINATION OF CONTROLS UNDER THIS TITLE.
(a) IN GENERAL.—Notwithstanding any other provi-
sion of law, the President—
(1) shall terminate any export control imposed
under this title if the President determines that the
control has substantially achieved the objective for
which it was imposed; and
(2) may terminate at any time any export con-
trol imposed under this title that is not required by
law.
(b) EXCEPTION.—Paragraphs (1) and (2) of sub-
section (a) do not apply to any export control imposed pur-
suant to section 310.
(c) EFFECTIVE DATE OF TERMINATION.—The termi-
nation of an export control pursuant to this section shall
take effect on the date notice of the termination is pub-
lished in the Federal Register.
SEC. 309. COMPLIANCE WITH INTERNATIONAL OBLIGA-
TIONS.
Notwithstanding any other provision of this Act set-
ting forth limitations on authority to control exports and
except as provided in section 304, the President may im-
pose controls on exports to a particular country or
countries—
(1) of items listed on the control list of a multi-
lateral export control regime, as defined in section
2(14); or
(2) in order to fulfill obligations or commit-
ments of the United States under resolutions of the
United Nations and under treaties, or other inter-
national agreements and arrangements, to which the
United States is a party.
SEC. 310. DESIGNATION OF COUNTRIES SUPPORTING
INTERNATIONAL TERRORISM.
(a) LICENSE
REQUIRED.—Notwithstanding 
any
other provision of this Act setting forth limitations on the
authority to control exports, a license shall be required for
the export of any item to a country if the Secretary of
State has determined that—
(1) the government of such country has repeat-
edly provided support for acts of international ter-
rorism; and
(2) the export of the item could make a signifi-
cant contribution to the military potential of such
country, including its military logistics capability, or
could enhance the ability of such country to support
acts of international terrorism.
(b) NOTIFICATION.—The Secretary and the Sec-
retary of State shall notify the Committee on International
Relations of the House of Representatives and the Com-
mittee on Banking, Housing, and Urban Affairs and the
Committee on Foreign Relations of the Senate at least 30
days before issuing any license required by subsection (a).
(c) DETERMINATIONS REGARDING REPEATED SUP-
PORT.—Each determination of the Secretary of State
under subsection (a)(1), including each determination in
effect on the date of the enactment of the Antiterrorism
and Arms Export Amendments Act of 1989, shall be pub-
lished in the Federal Register.
(d) LIMITATIONS
ON
RESCINDING
DETERMINA-
TION.—A determination made by the Secretary of State
under subsection (a)(1) may not be rescinded unless the
President submits to the Speaker of the House of Rep-
resentatives and the Chairman of the Committee on Bank-
ing, Housing, and Urban Affairs and the Chairman of the
Committee on Foreign Relations of the Senate—
(2) the reasons why the foreign country or
international organization to which the export or
transfer is proposed to be made needs the item
which is the subject of such export or transfer and
a description of the manner in which such country
or organization intends to use the item;
(3) the reasons why the proposed export or
transfer is in the national interest of the United
States;
(4) an analysis of the impact of the proposed
export or transfer on the military capabilities of the
foreign country or international organization to
which such export or transfer would be made;
(5) an analysis of the manner in which the pro-
posed export would affect the relative military
strengths of countries in the region to which the
item which is the subject of such export would be de-
livered and whether other countries in the region
have comparable kinds and amounts of the item; and
(6) an analysis of the impact of the proposed
export or transfer on the United States relations
with the countries in the region to which the item
which is the subject of such export would be deliv-
ered.
SEC. 311. CRIME CONTROL INSTRUMENTS.
(a) IN GENERAL.—Crime control and detection in-
struments and equipment shall be approved for export by
the Secretary only pursuant to an individual export li-
cense. Notwithstanding any other provision of this Act—
(1) any determination by the Secretary of what
goods or technology shall be included on the list es-
tablished pursuant to this subsection as a result of
the export restrictions imposed by this section shall
be made with the concurrence of the Secretary of
State, and
(2) any determination by the Secretary to ap-
prove or deny an export license application to export
crime control or detection instruments or equipment
shall be made in concurrence with the recommenda-
tions of the Secretary of State submitted to the Sec-
retary with respect to the application pursuant to
section 401 of this Act,
except that, if the Secretary does not agree with the Sec-
retary of State with respect to any determination under
paragraph (1) or (2), the matter shall be referred to the
President for resolution.
(b) EXCEPTION.—The provisions of this section shall
not apply with respect to exports to countries that are
members of the North Atlantic Treaty Organization or to
Japan, Australia, or New Zealand, or to such other coun-
tries as the President shall designate consistent with the
purposes of this section and section 502B of the Foreign
Assistance Act of 1961 (22 U.S.C. 2304).
TITLE IV—PROCEDURES FOR EX-
PORT LICENSES AND INTER-
AGENCY 
DISPUTE 
RESOLU-
TION
SEC. 401. EXPORT LICENSE PROCEDURES.
(a) RESPONSIBILITY OF THE SECRETARY.—
(1) IN GENERAL.—All applications for a license
or other authorization to export a controlled item
shall be filed in such manner and include such infor-
mation as the Secretary may, by regulation, pre-
scribe.
(2) PROCEDURES.—In guidance and regulations
that implement this section, the Secretary shall de-
scribe the procedures required by this section, the
responsibilities of the Secretary and of other depart-
ments and agencies in reviewing applications, the
rights of the applicant, and other relevant matters
affecting the review of license applications.
(3) CALCULATION OF PROCESSING TIMES.—In
calculating the processing times set forth in this
title, the Secretary shall use calendar days, except
that if the final day for a required action falls on a
weekend or holiday, that action shall be taken no
later than the following business day.
(4) CRITERIA
FOR
EVALUATING
APPLICA-
TIONS.—In determining whether to grant an appli-
cation to export a controlled item under this Act, the
following criteria shall be considered:
(A) The characteristics of the controlled
item.
(B) The threat to—
(i) the national security interests of
the United States from items controlled
under title II of this Act; or
(ii) the foreign policy of the United
States from items controlled under title III
of this Act.
(C) The country tier designation of the
country to which a controlled item is to be ex-
ported pursuant to section 203.
(D) The risk of export diversion or misuse
by—
(i) the exporter;
(ii) the method of export;
(iii) the end-user;
(iv) the country where the end-user is
located; and
(v) the end-use.
(E) Risk mitigating factors including, but
not limited to—
(i) changing the characteristics of the
controlled item;
(ii) after-market monitoring by the ex-
porter; and
(iii) post-shipment verification.
(b) INITIAL SCREENING.—
(1) UPON RECEIPT OF APPLICATION.—Upon re-
ceipt of an export license application, the Secretary
shall enter and maintain in the records of the De-
partment information regarding the receipt and sta-
tus of the application.
(2) INITIAL PROCEDURES.—
(A) IN GENERAL.—Not later than 9 days
after receiving any license application, the Sec-
retary shall—
(i) contact the applicant if the appli-
cation is improperly completed or if addi-
tional information is required, and hold the
application for a reasonable time while the
applicant provides the necessary correc-
tions or information, and such time shall
not be included in calculating the time pe-
riods prescribed in this title;
(ii) refer the application, through the
use of a common data base or other
means, and all information submitted by
the applicant, and all necessary rec-
ommendations and analyses by the Sec-
retary to the Secretary of Defense, the
Secretary of State, and the heads of and
other departments and agencies the Sec-
retary considers appropriate;
(iii) ensure that the classification stat-
ed on the application for the export items
is correct; and
(iv) return the application if a license
is not required.
(B) REFERRAL
NOT
REQUIRED.—In the
event that the head of a department or agency
determines that certain types of applications
need not be referred to the department or agen-
cy, such department or agency head shall notify
the Secretary of the specific types of such appli-
cations that the department or agency does not
wish to review.
(3) WITHDRAWAL OF APPLICATION.—An appli-
cant may, by written notice to the Secretary, with-
draw an application at any time before final action.
(c) ACTION BY OTHER DEPARTMENTS AND AGEN-
CIES.—
(1) REFERRAL TO OTHER AGENCIES.—The Sec-
retary shall promptly refer a license application to
the departments and agencies under subsection (b)
to make recommendations and provide information
to the Secretary.
(2) RESPONSIBILITY
OF
REFERRAL
DEPART-
MENTS AND AGENCIES.—The Secretary of Defense,
the Secretary of State, and the heads of other re-
viewing departments and agencies shall take all nec-
essary actions in a prompt and responsible manner
on an application. Each department or agency re-
viewing an application under this section shall estab-
lish and maintain records properly identifying and
monitoring the status of the matter referred to the
department or agency.
(3) ADDITIONAL
INFORMATION
REQUESTS.—
Each department or agency to which a license appli-
cation is referred shall specify to the Secretary any
information that is not in the application that would
be required for the department or agency to make
a determination with respect to the application, and
the Secretary shall promptly request such informa-
tion from the applicant. The time that may elapse
between the date the information is requested by
that department or agency and the date the infor-
mation is received by that department or agency
shall not be included in calculating the time periods
prescribed in this title.
(4) TIME PERIOD FOR ACTION BY REFERRAL
DEPARTMENTS
AND
AGENCIES.—Within 30 days
after the Secretary refers an application under this
section, each department or agency to which an ap-
plication has been referred shall provide the Sec-
retary with a recommendation either to approve the
license or to deny the license. A recommendation
that the Secretary deny a license shall include a
statement of reasons for the recommendation that
are consistent with the provisions of this title, and
shall cite both the specific statutory and regulatory
basis for the recommendation. A department or
agency that fails to provide a recommendation in ac-
cordance with this paragraph within that 30-day pe-
riod shall be deemed to have no objection to the de-
cision of the Secretary on the application.
(d) ACTION BY THE SECRETARY.—Not later than 30
days after the date the application is referred, the Sec-
retary shall—
(1) if there is agreement among the referral de-
partments and agencies to issue or deny the
license—
(A) issue the license and ensure all appro-
priate personnel in the Department (including
the Office of Export Enforcement) are notified
of all approved license applications; or
(B) notify the applicant of the intention to
deny the license; or
(2) if there is no agreement among the referral
departments and agencies, notify the applicant that
the application is subject to the interagency dispute
resolution process provided for in section 402.
(e) CONSEQUENCES OF APPLICATION DENIAL.—
(1) IN GENERAL.—If a determination is made
to deny a license, the applicant shall be informed in
writing, consistent with the protection of intelligence
information sources and methods, by the Secretary
of—
(A) the determination;
(B) the specific statutory and regulatory
bases for the proposed denial;
(C) what, if any, modifications to, or re-
strictions on, the items for which the license
was sought would allow such export to be com-
patible with export controls imposed under this
Act, and which officer or employee of the De-
partment would be in a position to discuss
modifications or restrictions with the applicant
and the specific statutory and regulatory bases
for imposing such modifications or restrictions;
(D) to the extent consistent with the na-
tional security and foreign policy interests of
the United States, the specific considerations
that led to the determination to deny the appli-
cation; and
(E) the availability of appeal procedures.
(2) PERIOD
FOR
APPLICANT
TO
RESPOND.—
The applicant shall have 20 days from the date of
the notice of intent to deny the application to re-
spond in a manner that addresses and corrects the
reasons for the denial. If the applicant does not ade-
quately address or correct the reasons for denial or
does not respond, the license shall be denied. If the
applicant does address or correct the reasons for de-
nial, the application shall be considered in a timely
manner.
(f) APPEALS AND OTHER ACTIONS BY APPLICANT.—
(1) IN GENERAL.—The Secretary shall establish
appropriate procedures for an applicant to appeal to
the Secretary the denial of an application or other
administrative action under this Act. In any case in
which the Secretary proposes to reverse the decision
with respect to the application, the appeal under this
subsection shall be handled in accordance with the
interagency dispute resolution process provided for
in section 402(b)(3).
(2) ENFORCEMENT OF TIME LIMITS.—
(A) IN GENERAL.—In any case in which
an action prescribed in this section is not taken
on an application within the time period estab-
lished by this section (except in the case of a
time period extended under subsection (g) of
which the applicant is notified), the applicant
may file a petition with the Secretary request-
ing compliance with the requirements of this
section. When such petition is filed, the Sec-
retary shall take immediate steps to correct the
situation giving rise to the petition and shall
immediately notify the applicant of such steps.
(B) BRINGING COURT ACTION.—If, within
20 days after a petition is filed under subpara-
graph (A), the processing of the application has
not been brought into conformity with the re-
quirements of this section, or the processing of
the application has been brought into con-
formity with such requirements but the Sec-
retary has not so notified the applicant, the ap-
plicant may bring an action in an appropriate
United States district court for an order requir-
ing compliance with the time periods required
by this section.
(g) EXCEPTIONS FROM REQUIRED TIME PERIODS.—
The following actions related to processing an application
shall not be included in calculating the time periods pre-
scribed in this section:
(1) AGREEMENT OF THE APPLICANT.—Delays
upon which the Secretary and the applicant mutu-
ally agree.
(2) PRELICENSE CHECKS.—A prelicense check
(for a period not to exceed 60 days) that may be re-
quired to establish the identity and reliability of the
recipient of items controlled under this Act, if—
(A) the need for the prelicense check is de-
termined by the Secretary or by another depart-
ment or agency in any case in which the re-
quest for the prelicense check is made by such
department or agency;
(B) the request for the prelicense check is
initiated by the Secretary within 5 days after
the determination that the prelicense check is
required; and
(C) the analysis of the result of the
prelicense check is completed by the Secretary
within 5 days.
(3) REQUESTS FOR GOVERNMENT-TO-GOVERN-
MENT ASSURANCES.—Any request by the Secretary
or another department or agency for government-to-
government assurances of suitable end-uses of items
approved for export, when failure to obtain such as-
surances would result in rejection of the application,
if—
(A) the request for such assurances is sent
to the Secretary of State within 5 days after
the determination that the assurances are re-
quired;
(B) the Secretary of State initiates the re-
quest of the relevant government within 10
days thereafter; and