TITLE I-AMENDMENTS TO EXPORT ADMINISTRATION ACT OF 1979

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M01152R001001290019-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 46
• Document Creation Date: December 22, 2016
• Document Release Date: February 26, 2010
• Sequence Number: 19
• Publication Date: July 3, 1985
• Content Type: REGULATION

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 S. 883
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~ine~-ninth ~ongre,~~ of the ~nit~~ ~tate,~ of ~me~~a
AT THE FIRST SESSION
Begun and held at the City of Washington on Thursday, the third day of January,
one thousand nine hundred and eighty-five
To reauthorize the Export Administration Act of 1979, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
Titles I and II of this Act may be cited as the "Export Administra-
tion Amendments Act of 1985".
TITLE I-AMENDMENTS TO EXPORT ADMINISTRATION ACT
OF 1979
5EC.101. REFERENCE TO THE ACT.
Except as a otherwise expressly provided, whenever in this title
an amendment is expressed in terms of an amendment to a section
or other provision, the reference shall be considered to be made to a
section or .other provision of the Export Administration Act of 1979.
SEC.102. FINDINGS.
Section 2 (50 U.S.C. App. 2401) is amended as follows:
(1) Paragraph (2) is amended by striking out "by strengi;hen-
ing the trade balance and the value of the United States dollar,
thereby reducing inflation" and inserting in lieu thereof "by
earning foreign exchange, thereby contributing favorably to the
trade balance".
(2) Paragraph (3) is amended by striking out "which would
strengthen the Nation s economy and inserting in lieu thereof
"consistent with the economic, security, and foreign policy
objectives of the United States".
(3) Paragraph (6) is amended to read as follows:
"(6) Uncertainty of export control policy can inhibit the ef-
forts of United States busmess and work to the detriment of the
overall attempt to improve the trade balance of the United
States.".
(4) Paragraph (9) is amended by striking out "achievement of
a positive balance of payments" and inserting in lieu thereof "a
positive contribution to the balance of payments".
(5) Section 2 is amended by adding at the end the following:
"(10) It is important that the administration of export con-
trols imposed for foreign policy purposes give special emphasis
to the need to control exports of goods and substances hazardous
to the public health and the environment which are banned or
severely restricted for use in the United States, and which, if
exported, could affect the international reputation of the United
States as a responsible trading partner.
"(11) The acquisition of national security sensitive goods and
technology by the Soviet Union and other countries the actions
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or policies of which run counter to the national security in-
terests of the United States, has led to the significant enhance-
ment of Soviet bloc military-industrial capabilities. This
enhancement poses a threat to the security of the United States,
its allies, and other friendly nations, and places additional
demands on the defense budget of the United States.
"(12) Availability to controlled countries of goods and tech-
nology from foreign sources is a fundamental concern of the
United States and should be eliminated through negotiations
and other appropriate means whenever possible.
"(13) Excessive dependence of the United States, its allies, or
countries sharing common strategic objectives with the United
States, on energy and other critical resources from potential
adversaries can be harmful to the mutual and individual secu-
rity of all those countries.".
SEC. 103. DECLARATION OF POLICY.
Section 3 (50 U.S.C. App. 2402) is amended as follows:
(1) Paragraph (3) is amended by inserting before the period at
the end "or common strategic objectives".
(2) Paragraph (7) is amended-
(A) by striking out "every reasonable effort" in the
second sentence and inserting in lieu thereof "reasonable
and prompt efforts"; and
(B) by striking out "resorting to the imposition of controls
on exports from the United States" in the second sentence
and inserting in lieu thereof "imposing export controls".
(3) Paragraph (8) is amended- reasonable effort" in the
(A) by striking out "every
second sentence and inserting in lieu thereof "reasonable
and prompt efforts"; and
(B) by striking out "resorting to the imposition of export
controls" in the second sentence and inserting in lieu
thereof "imposing export controls".
(4) Paragraph (9) is amended-
(A) by inserting "or common strategic objectives" after
"commitments" each place it appears; and
(B) by inserting before the period at the end the following:
", and to encourage other friendly countries to cooperate in
restricting the sale of goods and technology that can harm
the security of the United States".
(5) Section 3 is amended by adding at the end the following:
"(12) It is the policy of the United States to sustain vigorous
scientific enterprise. To do so involves sustaining the ability of
scientists and other scholars freely to communicate research
findings, in accordance with applicable provisions of law, b
means of publication, teaching, conferences, and other forms of
scholarly exchange.
"(13) It is the policy of the United States to control the export
of goods and substances banned or severely restricted for use in
the United States in order to foster public health and safety and
to prevent injury to the foreign policy of the United States as
well as to the credibility of the United States as a responsible
trading partner.
"(14) It is the policy of the United States to cooperate with
countries which are allies of the United States and countries
which share common strategic objectives with the United States
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in minimizing dependence on imports of energy and other
critical resources from potential adversaries and in developing
alternative supplies of such resources in order to minimize
strategic threats posed by excessive hard currency earnings
derived from such resource exports by countries with policies
adverse to the security interests of the United States.
"(15) It is the policy of the United States, particularly in light
of the Soviet massacre of innocent men, women, and children
aboard Korean Air Lines flight 7, to continue to object to
exceptions to the International Control List for the Union of
Soviet Socialist Republics, subject to periodic review by the
President.".
SEC. 104. GENERAL PROVISIONS.
(a) VALIDATED LICENSES AUTHORIZING MULTIPLE EXPORTS,-S2C-
tion 4(a)(2) (50 U.S.C. App. 2403(ax2)) is amended to read as follows:
"(2) Validated licenses authorizing multiple exports, issued
pursuant to an application by the exporter, in lieu of an individ-
ual validated license for each such export, including, but not
limited to, the following:
"(A) A distribution license, authorizing exports of goods
to approved distributors or users of the goods in countries
other than controlled countries. The Secretary shall grant
the distribution license primarily on the basis of the reli-
ability of the applicant and foreign consignees with respect
to the prevention of diversion of goods to controlled coun-
tries. -The Secretary shall have the responsibility of deter-
mining, with the assistance of all appropriate agencies, the
reliability of applicants and their Immediate consignees.
The Secretary's determination shall be based on appro-
priate investigations of each applicant and periodic reviews
of licensees and their compliance with the terms of licenses
issued under this Act. Factors such as the applicant's prod-
ucts or volume of business, or the consignees' geographic
location, sales distribution area, or degree of foreign owner-
ship, which may be relevant with respect to Individual
cases, shall not be determinative in creating categories or
general criteria for the denial of applications or withdrawal
of a distribution license..
"(B) A comprehensive operations license, authorizing ex-
ports and reexports of technology and related goods, includ-
ing items from the list of militarily critical technologies
developed pursuant to section 5(d) of this Act which are
included on the control list in accordance with that section,
from a domestic concern to and among its foreign subsidi-
aries, affiliates, joint venturers, and licensees that have
long-term, contractually defined relations with the ex-
porter, are located in countries other than controlled coun-
tries, and are approved by the Secretary. The Secretary
shall grant the license to manufacturing, laboratory, or
related operations on the basis of approval of the exporter's
systems of control, including internal proprietary controls,
applicable to the technology and related goods to lie ex-
ported rather than approval of individual export trans-
actions. The Secretary and the Commissioner of Customs,
consistent with their authorities under section 12(a) of this
Act, and with the assistance of all appropriate agencies,
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shall periodically, but not less frequently than annually,
perform audits of licensing procedures under this subpara-
graph in order to assure the integrity and effectiveness of
those procedures.
"(C) A project license, authorizing exports of goods or
technology for a specified activity.
"(D) A service supply license, authorizing exports of spare
or replacement parts for goods previously exported. .
(b) CONTROL LIST.-Section 4(b) is amended-
(1) by striking out "Commodity" and "commodity"; and
(2) by striking out "consisting of any goods or technology
subject to export controls under this Act" and inserting in lieu
thereof "stating license requirements (other than for general
licenses) for exports of goods and technology under this Act".
(C) FOREIGN AVAILABILITY.-Section 4(c) is amended-
(1) by striking out "sign cant" and inserting in lieu thereof
"sufficient";
(2) by inserting after "those produced in the United States"
the following: "so as to render the controls ineffective in achiev-
ing their purposes"; and
(3) by adding at the end the following: "In complying with the
provisions of this subsection, the President shall give strong
emphasis to bilateral or multilateral negotiations to eliminate
foreign availability. The Secretary and the Secretary of Defense
shall cooperate in gathering information relating to foreign
availability, including the establishment and maintenance of a
jointly operated computer system.".
(d) NOTIFICATION OF PUBLIC AND CONSULTATION WITH BUSINESS.-
Section 4(f) is amended to read as follows:
"(f) NOTIFICATION OF THE PUBLIC; CONSULTATION WITH BUSINESS.-
The Secretary shall keep the public fully apprised of changes in
export control policy and procedures instituted in conformity with
this Act with a view to encouraging trade. The Secretary shall meet
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
control policy and the foreign availability of goods and technology. .
SEC. 105. NATIONAL SECURITY CONTROLS.
(a) AUTHORITY.-
(1) TRANSFERS TO EMBASSIES OF CONTROLLED COUNTRIES.-Sec-
tion 5(aXl) (50 U.S.C. App. 2404(axl)) is amended by inserting
after the first sentence the following new sentence: 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.".
(2) CLERICAL AMENDMENT.-Section 5(ax2) is amended-
(A) by striking out "(A)"; and
(B) by striking out subparagraph B).
(3) .SAFEGUARDS TO PREVENT DIVERSIONS.-SectlOn 5(ax3) is
amended by striking out the last sentence.
(b) POLICY TOWARD INDIVIDUAL COUNTRIES:
(1) CONTROLLED couNTRIES.-Section 5tb) is amended by strik-
ing out the first sentence and inserting in lieu thereof the
securi~'ty purposes uncle this se ction,~the President shall eatab-
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lish as a list of controlled countries those countries set forth in
section 620(f) of the Foreign Assistance Act of 1961, except that
the President may add any country to or remove any country
from such list of controlled countries if he determines that the
export of goods or technology to such country would or would
not (as the case may be) make a significant contribution to the
military potential of such country or a combination of countries
which would prove detrimental to the national security of the
United States. In determining whether a country is added to or
removed from the list of controlled countries, the President
shall take into account-
"(A) the extent to which the country's policies are adverse to
the national security interests of the United States;
"(B) the country's Communist or non-Communist status;
"(C) the present and potential relationship of the country
with the United States;
"(D) the present and potential relationships of the country
with countries friendly or hostile to the United States;
"(E) the country's nuclear weapons capability and the coun-
try's compliance record with respect to multilateral nuclear
weapons agreements to which the United States is a party; and
"(F) such other factors as the President considers appropriate.
Nothing in the preceding sentence shall be interpreted to limit the
authority of the President provided in this Act to prohibit or curtail
the export of any goods or technology to .any country to which
exports are controlled for national security ,purposes other than
countries on the list of controlled countries specified in this
paragraph.".
(2) EXPORTS TO COCOM COUNTRIES.-SectlOri 5(b) 1S amended by
adding at the end the following:
"(2) 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 character-
istics that the export of the goods or technology to controlled
countries requires only notification of the participating govern-
ments of the Coordinating Committee.".
(3) TECHNICAL AMENDMENT.-SeCtlOri 5(b)(1), as amended by
paragraph (1) of this subsection, is amended in the last sentence
by striking out "specified in the preceding sentence" and insert-
ing in lieu thereof "set forth in this paragraph".
(C) CONTROL LIST.-
(1) ANNUAL REVIEW.-Section 5(C) 1S amended-
(A) in paragraph (1) by striking out "commodity"; and
(B) by amending paragraph (3) to read as follows:
"(3) 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
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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 availabil-
ity from sources outside the United States of goods and technology
comparable to those subject to export controls imposed under this
section.".
(2) EFFECTIVE DATE.-The amendment made by paragraph
(1xB) of this subsection shall take effect on October ,~,; 1985.
(d) EXPORT LICENSES.-Section 5(e) is amended-
(1) in paragraph (1) by striking out "a qualified general
license in lieu of a validated license" and Inserting in lieu
thereof "the multiple validated export licenses described in
section 4(a)(2) of this Act in lieu of individual validated li-
censes", and
(2) by striking out paragraphs (3) and (4) and inserting in lieu
thereof the following:
"(3) The Secretary, subject to the provisions of subsection (1) of this
section, shall not require an individual validated export license for
replacement parts which are exported to replace on a one-for-one
basis parts that were in a good that has been lawfully exported from
the United States.
"(4) The Secretary shall periodically review the procedures with
respect to the multiple validated export licenses, taking appropriate
action to increase their utilization by reducing qualification require-
ments or lowering minimum thresholds, to combine procedures
which overlap, and to eliminate those procedures which appear to be
of marginal utility.
"(5) The export of goods subject to export controls under this
section shall be eligible, at the discretion of the Secretary, far a
distribution license and other licenses authorizing multiple exports
of goods, in accordance with section 4(ax2) of this Act. The export of
technology and related goods subject to export controls under this
section shall be eligible for a comprehensive operations license in
accordance with section 4(a)(2)(B) of this Act.".
(e) INDEXING.-Section 5(g) is amended to read as follows:
"(g) INDEXING.-Iri order to ensure that requirements for vali-
dated licenses and other licenses authorizing multiple exports are
periodically removed as goods or technology subject to such require-
ments becomes 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.
The regulations issued by the Secretary shall establish as one
criterion for the removal of goods or technology from such license
requirements the anticipated needs of the military of controlled
countries. Any such goods or technology which no longer meets the
performance levels established by the regulations 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 lest unless objections de-
scribed in this subsection are raised.".
(f) 1VIULTILATERAL EXPORT CONTROLS: Section 5(i) is amended-
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(1) by striking out paragraph (3);
(2) in paragraph (4)-
(A) by striking out "(4)" and inserting in lieu thereof
"(3)"; and
(B) by striking out "pursuant to paragraph (3)" and
inserting in lieu thereof "by the members of the Commit-
tee"; and
(3) by adding at the end the following:
"(4) Agreement to enhance full compliance by all`parties with
the export controls imposed by agreement of the Committee
through the establishment of appropriate mechanisms.
"(5) Agreement to improve the International Control List and
minimise the approval of exceptions to that list, strengthen
enforcement and cooperation in enforcement efforts, provide
sufficient funding for the Committee, and improve the structure
and function of the Secretariat of the Committee by upgrading
professional staff, translation services, data base maintenance,
communications, and facilities.
"(6) Agreement to coordinate the systems of export control
documents used by the participating governments in order to
verify effectively the movement of goods or technology subject
to controls by the Committee from the country of any such
government to any other place.
"(7) Agreement to establish uniform, adequate criminal and
civil penalties to deter more effectively diversions of items
controlled for export by agreement of the Committee.
"(8) Agreement to Increase on-site inspections by national
enforcement authorities of the participating governments to
ensure that end users who have imported items controlled for
export by agreement of the Committee are using such items for
the stated end uses, and'that such items are, in fact, under the
control of those end users.
"(9) Agreement to strengthen the Committee so that it func-
tions effectively in controlling export trade in a manner that
better protects the national security of each participant to the
mutual benefit of all participants.".
(g) COMMERCIAL AGREEMENTS WITH CERTAIN COUNTRIES.-Section
5(j) is amended to read as follows:
"(j) COMMERCIAL AGREEMENTS WITH CERTAIN COUNTRIES.-(1) Any
United States firm, enterprise, or other nongovernmental entity
which enters into an agreement with any agency of the government
of a controlled country, that calls for the encouragement of tech-
nical cooperation and that 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 to the Secretary the agreement
with such agency in sufficient detail.
"(2) The provisions of paragraph (1) shall not apply to colleges,
universities, or other educational mstitutions.".
(h) NEGOTIATIONS WITH OTHER COUNTRIES.-Section 5(k) Is
amended-
(1) by inserting after "conducting negotiations with other
countries" the following: ", including those countries not
participating in the group known as the Coordinating Commit-
tee, ;and
(2) by adding at the end the following: "In cases where such
negotiations produce agreements on export restrictions com-
parable in practice to those maintained by the Coordinating
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Committee, the Secretary shall treat exports, whether by
individual or multiple licenses, to countries party to such agree-
ments in the same manner as exports to members of the
Coordinating Committee are treated, including the same
manner as exports are treated under subsection (bx2) of this
section and section 10(0) of this Act.".
(1) DIVERSION OF CONTROLLED GOODS OR TECHNOLOGY.-S@CtlOri 5(1)
is amended to read as follows:
"(1) DIVERSION OF CONTROLLED GOODS OR TECHNOLOGY.-(1) When-
ever there is reliable evidence, as determined by the Secretary, that
goods or technology which were exported subject to national secu-
rity controls under this section to a controlled country have been
diverted to an unauthorized use or consignee in violation of the
conditions of an export license, the Secretary for as long as that
diversion continues-
"(A) shall deny all further exports, to or by the party or
parties responsible for that diversion or who conspired In that
diversion, of any goods or technology subject to national secu-
rity controls under this section, regardless of whether such
goods or technology are available from sources outside the
United States; and
"(B) may take such additional actions under this Act with
respect to the party or parties referred to in subparagraph (A)
as the Secretary determines are appropriate In the cir-
cumstances to deter the further unauthorized use of the pre-
viously exported goods or technology.
"(2) As used in this subsection, the term `unauthorized use' means
the use of United States goods or technology in the design, produc-
tion, or maintenance of any item on the United States Munltlons
List, or the military use of any item on the International Control
List of the Coordinating Committee. .
(j) ADDITIONAL NATIONAL SECURITY PROVISIONS.-Section 5 is
amended by adding at the end the following new subsections:
"(m) GOODS CONTAINING MICROPROCESSORS.-Export controls may
not be imposed under this section on a good solely on the basis that
the good contains an embedded microprocessor, if such
microprocessor cannot be used or altered to perform functions other
than those it performs in the good in which it is embedded. An
export control may be imposed under this section"on a good contain-
ing an embedded microprocessor referred to in the preceding sen-
tence only on the basis that the functions of the good itself are such
that the good, if exported, would make a significant contribution to
the military potential of any other country or combination of coun-
tries which would prove detrimental to the national security of the
United States.
"(n) SECURITY MEASURES.-The Secretary and the Commissioner
of Customs, consistent with their authorities under section 12(a) of
this Act, and in consultation with the Director of the Federal
Bureau of Investigation, shall provide advice and technical assist-
ance to persons engaged In the manufacture or handling of goods or
technology subject to export controls under this section to develop
security systems to prevent violations or evasions of those export
controls.
"(o) RECORDKEEPING.-The Secretary, the Secretary of Defense,
and any other department or agency consulted in connection with a
license application under this Act or a revision of a list of goods or
technology subject to export controls under this Act, shall make and
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keep records of their respective advice, recommendations, or deci-
sions in connection with any such license application or revision,
including the factual and analytical basis of the advice, rec-
ommendations, or decisions.
"(p) NATIONAL SECURITY CONTROL OFFICE.-To assist in carrying
out the policy and other authorities and responsibilities of the
Secretary of Defense under this section, there is established in the
Department of Defense a National Sect~'ity Control Office under the
direction of the Under Secretary of Defense for Policy. The Sec-
retary of Defense may delegate to that office such of those authori-
ties and responsibilities, together with such ancillary functions, as
the Secretary of Defense considers appropriate.
"(q) EXCLUSION FOR AGRICULTURAL COMMODITIES.-This section
does not authorize export controls on agricultural commodities,
including fats, oils, and animal hides and skins.".
SEC. 106. MILITARILY CRITICAL TECHNOLOGIES.
(a) Section 5(d) (50 U.S.C. App. 2404(d)) is amended-
(1) in paragraph (2)-
(A) in subparagraph (B) by striking out "and" after "test
equipment,";
(B) by adding "and" at the end of subparagraph (C);
(C) by inserting after subparagraph (C) the following:
"(D) keystone equipment which would reveal or give insight
into the design and manufacture of a United States military
system,"; and
(D) by striking out "countries to which exports are con-
trolled under this section" and inserting in lieu thereof the
following: ", or available in fact from sources outside the
United States to, controlled countries"; and
(2) by striking out paragraphs (4) through (6) and inserting in
lieu thereof the following:
"(4) The Secretary and the Secretary of Defense shall integrate
items on the list of militarily critical technologies into the control
list in accordance with the requirements of subsection (c) of this
section. The integration of items on the list of militarily critical
technologies into the control list shall proceed vt,Iith all deliberate
speed. Any disagreement between the Secretary and the Secretary
of Defense regarding the integration of an item on the list of
militarily critical technologies into the control list shall be resolved
by the President. Except in the case of a good or technology for
which a validated license may be required under subsection (fx4) or
(h)(6) of this section, a good or technology shall be included on the
control list only if the Secretary finds that controlled countries do
not possess that good or technology, or a functionally equivalent
good or technology, and the good or ,technology or functionally
equivalent good or technology is not available in fact to a controlled
country from sources outside the United States in sufficient quan-
tity and of comparable quality so that the requirement of a vali-
dated license for the eXport of such good or technology is or would be
ineffective in achieving the purpose set forth in subsection (a) of this
section. The Secretary and the Secretary of Defense shall jointly
submit a report to the Congress, not later than 1 year after the date
of the enactment of the Export Administration Amendments Act of
1985, on actions taken to carry out this paragraph. For the purposes
of this paragraph, assessment of whether a good or technology is
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functionally equivalent shall include consideration of the factors
described in subsection (fx3) of this section.
"(5) The Secretary of Defense shall establish a procedure for
reviewing the goods and technology on the list of militarily critical
technologies at least annually for the purpose of removing from the
list of militarily critical technologies any goods or technology that
are no lgnger militarily critical. The Secretary of Defense may add
to'the list' of militarily critical technologies any good or technology
that the Secretary of Defense determmhs 21 of this subsection. If
consistent with the provisions of paragrap ( )
the Secretary and the Secretary of Defense disagree as to whether
any change In the list of militarlly critical technologies by the
addition or removal of a good or technology should also be made in
the control list, consistent with the provisions of the fourth sentence
of paragraph (4) of this subsection, the President shall resolve the
disagreement.
"(6) The establishment of adequate export controls for militarily
critical technology and keystone equipment shall be accompanied by
suitable reductions in the controls on the products of that tech-
nology and equipment.
"(7) The Secretary of Defense shall, not later than 1 year after the
date of the enactment of the Export Administration Amendments
Act of 1985, report to the Congress on efforts by the Department of
Defense to assess the Impact that the transfer of goods or technology
on the list of militarily crltical technologies to controlled countrles
has had or will have on the military capabilltles of those countries.".
5EC.107. FOREIGN AVAILABILITY.
(a) CONSULTATIONS ON FOREIGN AVAILABILITY: Section 5(f)(1) (50
U.S.C. App. 2404(f)(1)) is amended by i the Secgretary' of Defense and
in consultation with" the following:
other".
(b) DETERMINATIONS OF FOREIGN AVAILABILITY.-SeCtlOn 5(f)(3) 15
amended to read as follows:
"(3) The Secretary shall make a foreign availability determination
under paragraph (1) or (2) on the Secretary's own I 1 cant that such
receipt of an allegation from an export license app
availability exists. In making any such d ca tmslmade inhwriting and
shall accept the representations of app
supported by reasonable evidence, unless such representations are
contradicted by reliable evidence, including scientific or physical
examination, expert opinion based upon adequate factual informa-
tion, or intelligence Information. In making determinations of for-
eign availability, the Secretary may, consider such factors as cost,
reliability, the availability and reliability of spare parts and the cost
and quality thereof, maintenance programs, durability, quality of
end products produced by the item praopas h f evidence' ~ may include
production. For purposes of this pa ~ gr P
such items as foreign manufacturers catalogues, brochures, or oper-
ation or maintenance manuals, articles from reputable trade
publications, photographs, and depositions based upon eyewitness
accounts.".
(c) rjEGOTIATION5 oout the first senltence and i~Ilserting in4lieu
amended by striking "In any case in which export controls are
thereof the following:
maintained under this section notwithstanding foreign availability,
on account of a determination by the President that the absence of
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the controls would prove detrimental to the national security of the
United States, the President shall actively pursue negotiations with
the governments of the appropriate foreign countries for the pur-
pose of eliminating such availability. If, within 6 months after the
President's determination, the foreign availability has not been
eliminated, the Secretary may not, after the end of that 6-month
period, require a validated license for the export of the goods or
technology involved. The President may extend the 6-month period
described in the preceding sentence for an additional period of 12
months if the President certifies to the Congress that the negotia-
tions involved are progressing and that the absence of the export
control involved would prove detrimental to the national security of
the United States.".
(d) OFFICE OF FOREIGN AVAILABILITY.-
(1) ESTABLISHMENT.-Section 5(f)(5) is amended to read as
follows:
"(5) The Secretary shall establish in the Department of Commerce
an Office of Foreign Availability which, in the fiscal year 1985, shall
be under the direction of the Assistant Secretary of Commerce for
Trade Administration, and, in the fiscal year 1986 and thereafter,
shall be under the direction of the Under Secretary of Commerce for
Export Administration. The Office shall be responsible for gathering
and analyzing all the necessary information in order for the Sec-
retary to make determinations of foreign availability under this Act.
The Secretary shall make available to the Committee on Foreign
Affairs of the House of Representatives and the Committee on
Banking, Housing, and Urban Affairs of the Senate at the end' of
each 6-month period during a fiscal year information on the oper-
ations of the Office, and on improvements in the Government's
ability to assess foreign availability, during that 6-month period,
including information on the training of personnel, the use of
computers, and the use of Foreign Commercial Service officers. Such
information shall also include a description of representative deter-
minations made under this Act during that 6-month period that
foreign availability did or did not exist (as the case may be), together
with an explanation of such determinations.".
(2) CLERICAL AMENDMENT.-Section 5(f)(6) is amended by Strik-
ing out "Office of Export Administration" and inserting in lieu
thereof "Office of Foreign Availability".
(e) REGULATIONS ON FOREIGN AVAILABILITY.-Sectlori 5(f) 1S
amended by adding at the end the following new paragraph:
"(7) The Secretary shall issue regulations with respect to deter-
minations of foreign availability under this Act not later than 6
months after the date of the enactment of the Export Administra-
tion Amendments Act of 1985.".
(f) TECHNICAL ADVISORY COMMrrTEES.-
(1) MEMBERSHIP.-Section 5(hxl) is amended by inserting
",the intelligence community," after "Departments of Commerce,
Defense, and State".
(2) MATTERS ON WHICH COMMITTEES CONSULTED.-Section
5(hx2) is amended in the second sentence-
(A) by striking out "and" at the end of clause (C); and
(B) by inserting before the period at the end of the second
sentence the following: ", and (E) any other questions relat-
ing to actions designed to carry out the policy set forth in
section 3(2xA) of this Act.".
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(3) FOREIGN AVAILABILITY CERTIFICATIONS.-S2CtiOri 5(h)(6) is
amended by strikin?; out "and provides adequate documenta-
tion" and all that follows through the end of the paragraph and
inserting in lieu thereof the following: "the technical advisory
committee shall subrnit that certification to the Congress at the
same time the certification is made to the Secretary, together
with the documentation for the certification. The Secretary
shall investigate thE~ foreign availability so certified and, not
later than 90 days after the certification is made, shall submit a
report to the technical advisory committee and the Congress
stating that-
"(A) the Secretary has removed the requirement of a vali-
dated license for the export of the goods or technology, on
account of the foreign availability,
"(B) the Secretary has recommended to the President that
negotiations be conducted to eliminate the foreign availability,
"(C) the Secretary has determined on the basis of the inves-
tigation that the forE~ign availability does not exist.
To the extent necessary, the report may be submitted on a classified
basis. In any case in which the Secretary has recommended to the
President that negotiations be conducted to eliminate the foreign
availability, the President shall actively pursue such negotiations
with the governments of the appropriate foreign countries. If, within
6 months after the Secr~atary submits such report to the Congress,
the foreign availability leas not been eliminated, the Secretary may
not, after the end of that 6-month period, require a validated license
for the export of the goods or technology involved. The President
may extend the 6-month period described in the preceding sentence
for an additional period of 12,months if the President certifies to the
Congress that the negoti~rtions involved are progressing and that the
absence of the export control involved would prove detrimental to
the national security of the United States.".
(1) STANDARD FOR FOREIGN AVAILABILITY.-Subsections (fxl), (f)(2),
and (h)(6) of section 5 are each amended by striking out "sufficient
quality" and inserting in lieu thereof "comparable quality".
(j) TECHNICAL AMENDM[ENTS.- ~^
(1) Subsection (f)(1) of section 5 is amended in the second
sentence by striking; out "such destinations" and inserting in
lieu thereof "controlled countries".
(2) Subsections (f)f 4) and (hx6) of section 5 are each amended
by striking out "cou:ntries to which exports are controlled under
this section" and inserting in lieu thereof "controlled
countries".
SEC. 108. FOREIGN POLICY CONTftOL3.
(a) AUTHORITY.-SeCtlOn 6(a) (50 U.S.C. App. 2405(a)) is amended-
(1) in paragraph (].~
(A) by striking out "or (8)" and inserting in lieu thereof
"(8), or (13)"; and
(B) by inserting in the second sentence after "Secretary of
State" the following: ", the Secretary of Defense, the Sec-
retary of Agriculture, the Secretary of the Treasury, the
United States Trade Representative, ';
(2) by redesignati~ng paragraphs (2) through (4) as paragraphs
(3) through (5), respE~ctively;
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S. 883-13
(3) by inserting after paragraph (1) the following new
paragraph:
"(2) Any export control imposed under this section shall apply to
any transaction or activity undertaken with the intent to evade that
export control, even if that export control would not otherwise apply
to that transaction or activity."; and
(4) in paragraph (3), as redesignated by paragraph (2) of this
subsection, by striking out "(e)" and inserting in lieu thereof