1994 U.S. Code
Title 50 - WAR AND NATIONAL DEFENSE
TITLE 50 - APPENDIX-WAR AND NATIONAL DEFENSE
EXPORT REGULATION
Sec. 2403 - General provisions

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§2403. General provisions (a) Types of licenses

Under such conditions as may be imposed by the Secretary which are consistent with the provisions of this Act [sections 2401 to 2420 of this Appendix], the Secretary may require any of the following types of export licenses:

(1) A validated license, authorizing a specific export, issued pursuant to an application by the exporter.

(2) Validated licenses authorizing multiple exports, issued pursuant to an application by the exporter, in lieu of an individual 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, except that the Secretary may establish a type of distribution license appropriate for consignees in the People's Republic of China. The Secretary shall grant the distribution license primarily on the basis of the reliability of the applicant and foreign consignees with respect to the prevention of diversion of goods to controlled countries. The Secretary shall have the responsibility of determining, with the assistance of all appropriate agencies, the reliability of applicants and their immediate consignees. The Secretary's determination shall be based on appropriate investigations of each applicant and periodic reviews of licensees and their compliance with the terms of licenses issued under this Act [sections 2401 to 2420 of this Appendix]. Factors such as the applicant's products or volume of business, or the consignees’ geographic location, sales distribution area, or degree of foreign ownership, 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 exports and reexports of technology and related goods, including items from the list of militarily critical technologies developed pursuant to section 5(d) of this Act [section 2404(d) of this Appendix] which are included on the control list in accordance with that section, from a domestic concern to and among its foreign subsidiaries, affiliates, joint venturers, and licensees that have long-term, contractually defined relations with the exporter, are located in countries other than controlled countries (except the People's Republic of China), 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 be exported rather than approval of individual export transactions. The Secretary and the Commissioner of Customs, consistent with their authorities under section 12(a) of this Act [section 2411(a) of this Appendix] and with the assistance of all appropriate agencies, shall periodically, but not less frequently than annually, perform audits of licensing procedures under this subparagraph 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.

(3) A general license, authorizing exports, without application by the exporter.

(4) Such other licenses as may assist in the effective and efficient implementation of this Act [sections 2401 to 2420 of this Appendix].

(b) Control list

The Secretary shall establish and maintain a list (hereinafter in this Act [sections 2401 to 2420 of this Appendix] referred to as the “control list”) stating license requirements (other than for general licenses) for exports of goods and technology under this Act [sections 2401 to 2420 of this Appendix].

(c) Foreign availability

In accordance with the provisions of this Act [sections 2401 to 2420 of this Appendix], the President shall not impose export controls for foreign policy or national security purposes on the export from the United States of goods or technology which he determines are available without restriction from sources outside the United States in sufficient quantities and comparable in quality to those produced in the United States so as to render the controls ineffective in achieving their purposes, unless the President determines that adequate evidence has been presented to him demonstrating that the absence of such controls would prove detrimental to the foreign policy or national security of the United States. 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) Right of export

No authority or permission to export may be required under this Act [sections 2401 to 2420 of this Appendix], or under regulations issued under this Act [sections 2401 to 2420 of this Appendix], except to carry out the policies set forth in section 3 of this Act [section 2402 of this Appendix].

(e) Delegation of authority

The President may delegate the power, authority, and discretion conferred upon him by this Act [sections 2401 to 2420 of this Appendix] to such departments, agencies, or officials of the Government as he may consider appropriate, except that no authority under this Act [sections 2401 to 2420 of this Appendix] may be delegated to, or exercised by, any official of any department or agency the head of which is not appointed by the President, by and with the advice and consent of the Senate. The President may not delegate or transfer his power, authority, and discretion to overrule or modify any recommendation or decision made by the Secretary, the Secretary of Defense, or the Secretary of State pursuant to the provisions of this Act [sections 2401 to 2420 of this Appendix].

(f) Notification of 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 [sections 2401 to 2420 of this Appendix] 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.

(g) Fees

No fee may be charged in connection with the submission or processing of an export license application.

(Pub. L. 96–72, §4, Sept. 29, 1979, 93 Stat. 505; Pub. L. 99–64, title I, §104, July 12, 1985, 99 Stat. 122; Pub. L. 100–418, title II, §§2411, 2412, Aug. 23, 1988, 102 Stat. 1347.)

References in Text

This Act, referred to in text, is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, as amended, known as the Export Administration Act of 1979, which enacted sections 2401 to 2420 of this Appendix, amended section 1732 of Title 7, Agriculture, sections 2778 and 3108 of Title 22, Foreign Relations and Intercourse, section 993 of Title 26, Internal Revenue Code, and sections 6212 and 6274 of Title 42, The Public Health and Welfare, and enacted provisions set out as notes under sections 2401, 2406, and 2409 of this Appendix and section 3108 of Title 22. For complete classification of this Act to the Code, see Short Title note set out under section 2401 of this Appendix and Tables.

Prior Provisions

A prior section 2403, Pub. L. 91–184, §4, Dec. 30, 1969, 83 Stat. 842; Pub. L. 92–412, title I, §104(a), (b)(1), Aug. 29, 1972, 86 Stat. 644, 645; Pub. L. 93–500, §§3(a), 5(a), 7, 9, 10, 12, Oct. 29, 1974, 88 Stat. 1552–1557; Pub. L. 95–52, title I, §§103(a), (b)(1)–(3), (c), 104–110, 113(b), title II, §201(b), June 22, 1977, 91 Stat. 235–239, 241, 246; Pub. L. 95–223, title III, §301(a), (b)(1), Dec. 28, 1977, 91 Stat. 1629; Pub. L. 95–384. §6(d)(2), Sept. 26, 1978, 92 Stat. 731; Pub. L. 95–435, §5(d), Oct. 10, 1978, 92 Stat. 1052; Pub. L. 96–67, §2, Sept. 21, 1979, 93 Stat. 415, setting forth provisions relating to authorities to effectuate policies and limitations on exercise of authorities, expired on Sept. 30, 1979.

Amendments

1988—Subsec. (a)(2)(A). Pub. L. 100–418, §2412(1), inserted exception authorizing the Secretary to establish a type of distribution license appropriate to consignees in the People's Republic of China.

Subsec. (a)(2)(B). Pub. L. 100–418, §2412(2), inserted “(except the People's Republic of China)” after “controlled countries”.

Subsec. (g). Pub. L. 100–418, §2411, added subsec. (g).

1985—Subsec. (a)(2). Pub. L. 99–64, §104(a), amended par. (2) generally, substituting provisions relating to validated licenses authorizing multiple exports including, but not limited to, distribution licenses, comprehensive operations licenses, project licenses, and service supply licenses, for former provisions which read: “A qualified general license, authorizing multiple exports, issued pursuant to an application by the exporter.”

Subsec. (b). Pub. L. 99–64, §104(b), substituted “Control list” for “Commodity control list” in heading and, in text, substituted “control list” for “commodity control list” and “stating license requirements (other than for general licenses) for exports of goods and technology under this Act” for “consisting of any goods or technology subject to export controls under this Act”.

Subsec. (c). Pub. L. 99–64, §104(c), substituted “sufficient” for “significant”, inserted “so as to render the controls ineffective in achieving their purposes”, and inserted provisions directing that, in complying with the provisions of this subsection, the President shall give strong emphasis to bilateral or multilateral negotiations to eliminate foreign availability, and that 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.

Subsec. (f). Pub. L. 99–64, §104(d), amended subsec. (f) generally, substituting “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” for “representatives of the business sector in order to obtain their views on export control policy and the foreign availability of goods and technology”.

Executive Order No. 11533

Ex. Ord. No. 11533, June 4, 1970, 35 F.R. 8799, as amended by Ex. Ord. No. 11907, Mar. 1, 1976, 41 F.R. 9085, which provided for the administration of the Export Administration Act of 1969, was revoked by Ex. Ord. No. 12002, July 7, 1977, 42 F.R. 35623, set out below.

Executive Order No. 11677

Ex. Ord. No. 11677, Aug. 1, 1972, 37 F.R. 15483, formerly set out as a note under this section, which provided for the regulation of exports, was revoked by Ex. Ord. No. 11683, Aug. 29, 1972, 37 F.R. 17813.

Executive Order No. 11683

Ex. Ord. No. 11683, Aug. 29, 1972, 37 F.R. 17813, which revoked Ex. Ord. No. 11677, was revoked by Ex. Ord. No. 12002, July 7, 1977, 42 F.R. 35623, set out below.

Executive Order No. 11798

Ex. Ord. No. 11798, Aug. 14, 1974, 39 F.R. 29567, which provided for the continuing regulation of exports, was revoked by Ex. Ord. No. 12002, July 7, 1977, 42 F.R. 35623, set out below.

Executive Order No. 11818

Ex. Ord. No. 11818, Nov. 5, 1974, 39 F.R. 39429, which provided for the continuing regulation of exports, was revoked by Ex. Ord. No. 12002, July 7, 1977, 42 F.R. 35623, set out below.

Executive Order No. 11940

Ex. Ord. No. 11940, Sept. 30, 1976, 41 F.R. 43707, which provided for the continuing regulation of exports, was revoked by Ex. Ord. No. 12002, July 7, 1977, 42 F.R. 35623, set out below.

Ex. Ord. No. 12002. Administration of Export Administration Act

Ex. Ord. No. 12002, July 7, 1977, 42 F.R. 35623, as amended by Ex. Ord. No. 12755, Mar. 12, 1991, 56 F.R. 11057, provided:

By virtue of the authority vested in me by the Constitution and statutes of the United States of America, including the Export Administration Act of 1969, as amended (50 U.S.C. App. 2401, et seq.), and as President of the United States of America, it is hereby ordered as follows:

Section 1. Except as provided in Section 2, the power, authority, and discretion conferred upon the President by the provisions of the Export Administration Act of 1969, as amended (50 U.S.C. App. 2401, et seq.), hereinafter referred to as the Act, are delegated to the Secretary of Commerce, with the power of successive redelegation.

Sec. 2. (a) The power, authority and discretion conferred upon the President in Sections 4(h) and 4(l) of the Act are retained by the President.

(b) The power, authority and discretion conferred upon the President in Section 3(8) of the Act [section 2402(8) of this Appendix], which directs that every reasonable effort be made to secure the removal or reduction of assistance by foreign countries to international terrorists through cooperation and agreement, are delegated to the Secretary of State, with the power of successive redelegation.

Sec. 3. The Export Administration Review Board, hereinafter referred to as the Board, which was established by Executive Order No. 11533 of June 4, 1970, as amended, is hereby continued. The Board shall continue to have as its members, the Secretary of Commerce, who shall be Chairman of the Board, the Secretary of State, and the Secretary of Defense. The Secretary of Energy and the Director of the United States Arms Control and Disarmament Agency shall be members of the Board, and shall participate in meetings that consider issues involving nonproliferation of armaments and other issues within their respective statutory and policy-making authorities. The Chairman of the Joint Chiefs of Staff and the Director of Central Intelligence shall be non-voting members of the Board. No alternate Board members shall be designated, but the acting head or deputy head of any department or agency may serve in lieu of the head of the concerned department or agency. The Board may invite the heads of other United States Government departments or agencies, other than the agencies represented by the Board members, to participate in the activities of the Board when matters of interest to such departments or agencies are under consideration.

Sec. 4. The Secretary of Commerce may from time to time refer to the Board such particular export license matters, involving questions of national security or other major policy issues, as the Secretary shall select. The Secretary of Commerce shall also refer to the Board any other such export license matter, upon the request of any other member of the Board or of the head of any other United States Government department or agency having any interest in such matter. The Board shall consider the matters so referred to it, giving due consideration to the foreign policy of the United States, the national security, concerns about the nonproliferation of armaments, and the domestic economy, and shall make recommendation thereon to the Secretary of Commerce.

Sec. 5. The President may at any time (a) prescribe rules and regulations applicable to the power, authority, and discretion referred to in this Order, and (b) communicate to the Secretary of Commerce such specific directives applicable thereto as the President shall determine. The Secretary of Commerce shall from time to time report to the President upon the administration of the Act and, as the Secretary deems necessary, may refer to the President recommendations made by the Board under Section 4 of this Order. Neither the provisions of this section nor those of Section 4 shall be construed as limiting the provisions of Section 1 of this Order.

Sec. 6. All delegations, rules, regulations, orders, licenses, and other forms of administrative action made, issued, or otherwise taken under, or continued in existence by, the Executive orders revoked in Section 7 of this Order, and not revoked administratively or legislatively, shall remain in full force and effect under this Order until amended, modified, or terminated by proper authority. The revocations in Section 7 of this Order shall not affect any violation of any rules, regulations, orders, licenses or other forms of administrative action under those Orders during the period those Orders were in effect.

Sec. 7. Executive Order No. 11533 of June 4, 1970, Executive Order No. 11683 of August 29, 1972, Executive Order No. 11798 of August 14, 1974, Executive Order No. 11818 of November 5, 1974, Executive Order No. 11907 of March 1, 1976, and Executive Order No. 11940 of September 30, 1976 are hereby revoked.

Ex. Ord. No. 12214. Administration of Export Administration Act

Ex. Ord. No. 12214, May 2, 1980, 45 F.R. 29783, provided:

By the authority vested in me as President of the United States of America by Section 4(e) of the Export Administration Act of 1979 (Public Law 96–72; 50 U.S.C. App. 2403(e)), it is hereby ordered as follows:

1–101. Except as provided in Section 1–102, the functions conferred upon the President by the provisions of the Export Administration Act of 1979, hereinafter referred to as the Act (Public Law 96–72; 50 U.S.C. App. 2401 et seq.), are delegated to the Secretary of Commerce.

1–102. (a) The functions conferred upon the President by Sections 4(e), 5(c), 5(f)(1), 5(h)(6), 6(k), 7(d)(2), 10(g) and 20 of the Act [50 U.S.C. App. 2403(e), 2404(c), 2404(f)(1), 2404(h)(6), 2405(k), 2406(d)(2), 2409(g) and 2419] are reserved to the President.

(b) The functions conferred upon the President by Sections 5(f)(4), 5(i), and 6(g) of the Act [50 U.S.C. App. 2404(f)(4), 2404(i), and 2405(g)] are delegated to the Secretary of State.

1–103. All delegations, rules, regulations, orders, licenses, and other forms of administrative action made, issued or otherwise taken under, or continued in existence by, Section 21 of the Act [50 U.S.C. App. 2420] or Executive Order No. 12002 [set out above], and not revoked administratively or legislatively, shall remain in full force and effect until amended, modified, or terminated by proper authority. This Order does not supersede or otherwise affect Executive Order No. 12002.

1–104. Except to the extent inconsistent with this Order, all actions previously taken pursuant to any function delegated or assigned by this Order shall be deemed to have been taken and authorized by this Order.

Jimmy Carter.

Executive Order No. 12264

Ex. Ord. No. 12264, Jan. 15, 1981, 46 F.R. 4659, which related to the Federal policy regarding the export of banned or significantly restricted substances, was revoked by Ex. Ord. No. 12290, Feb. 17, 1981, 46 F.R. 12943, set out below.

Ex. Ord. No. 12290. Implementation of Export Administration Act With Minimum Regulatory Burden

Ex. Ord. No. 12290, Feb. 17, 1981, 46 F.R. 12943, provided:

By the authority vested in me as President by the Constitution of the United States of America, and in order to ensure that the Export Administration Act of 1979 [sections 2401 to 2420 of this Appendix] is implemented with the minimum regulatory burden, Executive Order No. 12264 of January 15, 1981, entitled “On Federal Policy Regarding the Export of Banned or Significantly Restricted Substances,” is hereby revoked.

Ronald Reagan.

Continuation of Export Control Regulations

Provisions relating to continued effectiveness of the Export Administration Act of 1979, 50 App. U.S.C. 2401 et seq., and to issuance and continued effectiveness of rules, regulations, orders, licenses, and other forms of administrative action and delegations of authority relating to administration of that Act, were contained in the following:

Ex. Ord. No. 12867, Sept. 30, 1993, 58 F.R. 51747, set out as a note under section 1701 of Title 50, War and National Defense.

Ex. Ord. No. 12730, Sept. 30, 1990, 55 F.R. 40373, formerly set out as a note under section 1701 of Title 50, prior to revocation by Ex. Ord. No. 12867, Sept. 30, 1993, 58 F.R. 51747.

Ex. Ord. No. 12525, July 12, 1985, 50 F.R. 28757, set out as a note under section 1701 of Title 50.

Ex. Ord. No. 12470, Mar. 30, 1984, 49 F.R. 13099, formerly set out as a note under section 1701 of Title 50, prior to revocation by Ex. Ord. No. 12525, July 12, 1985, 50 F.R. 28757.

Ex. Ord. No. 12451, Dec. 20, 1983, 48 F.R. 56563, set out as a note under section 1701 of Title 50.

Ex. Ord. No. 12444, Oct. 14, 1983, 48 F.R. 48215, formerly set out as a note under section 1701 of Title 50, prior to revocation by Ex. Ord. No. 12451, Dec. 20, 1983, 48 F.R. 56563.

Section Referred to in Other Sections

This section is referred to in sections 2404, 2406, 2409, 2411, 2413, 2414 of this Appendix.