Export Controls on High Performance Computers

Pub. L. 105–85, div. A, title XII, subtitle B, Nov. 18, 1997, 111 Stat. 1932, as amended by Pub. L. 105–261, div. A, title XV, § 1524, Oct. 17, 1998, 112 Stat. 2180; Pub. L. 106–65, div. A, title X, § 1067(4), title XIV, § 1407(c), Oct. 5, 1999, 113 Stat. 774, 801; Pub. L. 106–398, § 1 [[div. A], title XII, § 1234(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–330, provided that:

“SEC. 1211.

EXPORT APPROVALS FOR HIGH PERFORMANCE COMPUTERS.

“(a)

Prior Approval of Exports and Reexports.—

The President shall require that no digital computer with a composite theoretical performance level of more than 2,000 millions of theoretical operations per second (MTOPS) or with such other composite theoretical performance level as may be established subsequently by the President under subsection (d), may be exported or reexported without a license to a country specified in subsection (b) if the Secretary of Commerce, the Secretary of Defense, the Secretary of Energy, the Secretary of State, or the Director of the Arms Control and Disarmament Agency objects, in writing, to such export or reexport. Any person proposing to export or reexport such a digital computer shall so notify the Secretary of Commerce, who, within 24 hours after receiving the notification, shall transmit the notification to the Secretary of Defense, the Secretary of Energy, the Secretary of State, and the Director of the Arms Control and Disarmament Agency.

“(b)

Covered Countries.—

For purposes of subsection (a), the countries specified in this subsection are the countries listed as ‘Computer Tier 3’ eligible countries in section 740.7(d) of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997, subject to modification by the President under subsection (e).

“(c)

Time Limit.—

Written objections under subsection (a) to an export or reexport shall be raised within 10 days after the notification is received under subsection (a). If such a written objection to the export or reexport of a computer is raised, the computer may be exported or reexported only pursuant to a license issued by the Secretary of Commerce under the Export Administration Regulations of the Department of Commerce, without regard to the licensing exceptions otherwise authorized under section 740.7 of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997. If no objection is raised within the 10-day period, the export or reexport is authorized.

“(d)

Adjustment of Composite Theoretical Performance.—

The President, in consultation with the Secretary of Commerce, the Secretary of Defense, the Secretary of Energy, the Secretary of State, and the Director of the Arms Control and Disarmament Agency, may establish a new composite theoretical performance level for purposes of subsection (a). Such new level shall not take effect until 60 days after the President submits to the congressional committees designated in section 1215 a report setting forth the new composite theoretical performance level and the justification for such new level. Each report shall, at a minimum—

“(1)

address the extent to which high performance computers of a composite theoretical level between the level established in subsection (a) or such level as has been previously adjusted pursuant to this section and the new level, are available from other countries;

“(2)

address all potential uses of military significance to which high performance computers at the new level could be applied; and

“(3)

assess the impact of such uses on the national security interests of the United States.

“(e)

Adjustment of Covered Countries.—

“(1)

In general.—

The President, in consultation with the Secretary of Commerce, the Secretary of Defense, the Secretary of Energy, the Secretary of State, and the Director of the Arms Control and Disarmament Agency, may add a country to or remove a country from the list of covered countries in subsection (b), except that a country may be removed from the list only in accordance with paragraph (2).

“(2)

Deletions from list of covered countries.—

The removal of a country from the list of covered countries under subsection (b) shall not take effect until 120 days after the President submits to the congressional committees designated in section 1215 a report setting forth the justification for the deletion.

“(3)

Excluded countries.—

A country may not be removed from the list of covered countries under subsection (b) if—

“(A)

the country is a ‘nuclear-weapon state’ (as defined by Article IX of the Treaty on the Non-Proliferation of Nuclear Weapons) and the country is not a member of the North Atlantic Treaty Organization; or

“(B)

the country is not a signatory of the Treaty on the Non-Proliferation of Nuclear Weapons and the country is listed on Annex 2 to the Comprehensive Nuclear Test-Ban Treaty.

“(f)

Classification.—

Each report under subsections (d) and (e) shall be submitted in an unclassified form and may, if necessary, have a classified supplement.

“(g)

Delegation of Objection Authority Within the Department of Defense.—

For the purposes of the Department of Defense, the authority to issue an objection referred to in subsection (a) shall be executed for the Secretary of Defense by an official at the Assistant Secretary level within the office of the Under Secretary of Defense for Policy. In implementing subsection (a), the Secretary of Defense shall ensure that Department of Defense procedures maximize the ability of the Department of Defense to be able to issue an objection within the 10-day period specified in subsection (c).

“(h)

Calculation of 60-Day Period.—

The 60-day period referred to in subsection (d) shall be calculated by excluding the days on which either House of Congress is not in session because of an adjournment of the Congress sine die.

“SEC. 1212.

REPORT ON EXPORTS OF HIGH PERFORMANCE COMPUTERS.

“(a)

Report.—

Not later than 60 days after the date of the enactment of this Act [Nov. 18, 1997], the President shall provide to the congressional committees specified in section 1215 a report identifying all exports of digital computers with a composite theoretical performance of more than 2,000 millions of theoretical operations per second (MTOPS) to all countries since January 25, 1996. For each export, the report shall identify—

“(1)

whether an export license was applied for and whether one was granted;

“(2)

the date of the transfer of the computer;

“(3)

the United States manufacturer and exporter of the computer;

“(4)

the MTOPS level of the computer; and

“(5)

the recipient country and end user.

“(b)

Additional Information on Exports to Certain Countries.—

In the case of exports to countries specified in subsection (c), the report under subsection (a) shall identify the intended end use for the exported computer and the assessment by the executive branch of whether the end user is a military end user or an end user involved in activities relating to nuclear, chemical, or biological weapons or missile technology. Information provided under this subsection may be submitted in classified form if necessary.

“(c)

Covered Countries.—

For purposes of subsection (b), the countries specified in this subsection are—

“(1)

the countries listed as ‘Computer Tier 3’ eligible countries in section 740.7(d) of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997; and

“(2)

the countries listed in section 740.7(e) of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997.

“SEC. 1213.

POST-SHIPMENT VERIFICATION OF EXPORT OF HIGH PERFORMANCE COMPUTERS.

“(a)

Required Post-Shipment Verification.—

The Secretary of Commerce shall conduct post-shipment verification of each digital computer with a composite theoretical performance of more than 2,000 millions of theoretical operations per second (MTOPS) that is exported from the United States, on or after the date of the enactment of this Act [Nov. 18, 1998], to a country specified in subsection (b).

“(b)

Covered Countries.—

For purposes of subsection (a), the countries specified in this subsection are the countries listed as ‘Computer Tier 3’ eligible countries in section 740.7 of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997, subject to modification by the President under section 1211(e).

“(c)

Annual Report.—

The Secretary of Commerce shall submit to the congressional committees specified in section 1215 an annual report on the results of post-shipment verifications conducted under this section during the preceding year. Each such report shall include a list of all such items exported from the United States to such countries during the previous year and, with respect to each such export, the following:

“(1)

The destination country.

“(2)

The date of export.

“(3)

The intended end use and intended end user.

“(4)

The results of the post-shipment verification.

“(d)

Explanation When Verification Not Conducted.—

If a post-shipment verification has not been conducted in accordance with subsection (a) with respect to any such export during the period covered by a report, the Secretary shall include in the report for that period a detailed explanation of the reasons why such a post-shipment verification was not conducted.

“(e)

Adjustment of Performance Levels.—

Whenever a new composite theoretical performance level is established under section 1211(d), that level shall apply for purposes of subsection (a) of this section in lieu of the level set forth in subsection (a).

“SEC. 1214.

GAO STUDY ON CERTAIN COMPUTERS; END USER INFORMATION ASSISTANCE.

“(a)

In General.—

The Comptroller General of the United States shall submit to the congressional committees specified in section 1215 a study of the national security risks relating to the sale of computers with a composite theoretical performance of between 2,000 and 7,000 millions of theoretical operations per second (MTOPS) to end users in countries specified in subsection (c). The study shall also analyze any foreign availability of computers described in the preceding sentence and the impact of such sales on United States exporters.

“(b)

End User Information Assistance to Exporters.—

The Secretary of Commerce shall establish a procedure by which exporters may seek information on questionable end users in countries specified in subsection (c) who are seeking to obtain computers described in subsection (a).

“(c)

Covered Countries.—

For purposes of subsections (a) and (b), the countries specified in this subsection are the countries listed as ‘Computer Tier 3’ eligible countries in section 740.7(d) of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997.

“SEC. 1215.

CONGRESSIONAL COMMITTEES.

“For purposes of sections 1211(d), 1212(a), 1213(c), and 1214(a) the congressional committees specified in those sections are the following:

“(1)

The Committee on Banking, Housing, and Urban Affairs and the Committee on Armed Services of the Senate.

“(2)

The Committee on International Relations [now Committee on Foreign Affairs] and the Committee on Armed Services of the House of Representatives.”

[Pub. L. 106–398, § 1 [[div. A], title XII, § 1234(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–331, provided that: “The amendments made by subsection (a) [amending section 1211 of Pub. L. 105–85, set out above] shall apply to any new composite theoretical performance level established for purposes of section 1211(a) of the National Defense Authorization Act for Fiscal Year 1998 [Pub. L. 105–85] that is submitted by the President pursuant to section 1211(d) of that Act on or after the date of the enactment of this Act [Oct. 30, 2000].”]

[For abolition, transfer of functions, and treatment of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of Title 22, Foreign Relations and Intercourse.]