PUBLIC LAW 99-64—JULY 12, 1985
99 STAT. 129
functionally equivalent shall include consideration of the factors described in subsection (fK3) 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 longer militarily critical. The Secretary of Defense may add to the list of militarily critical technologies any good or technolo^ that the Secretary of Defense determines is militarily critical, consistent with the provisione of paragraph (2) of this subsection. If President of U.S. the Secretary and the Secretary of Defense disagree as to whether any change in the list of militarily 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 technology and equipment. "(7) The Secretary of Defense shall, not later than 1 year.ifter the Report. 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 critical technologies to controlled countries has had or will have on the military capabilities of those countries.". SEC. 107. FOREIGN AVAILABILITY.
(a) CONSULTATIONS ON FOREIGN AVAILABILITY.—Section 5(fKl) (50 U.S.C. App. 2404(f)(l)) is amended by inserting after "The Secretary, in consultation with" the following: "the Secretary of Defense and other". (b) DETERMINATIONS OF FOREIGN AVAILABILITY.—Section 5(fK3) is amended to read as follows: "(3) The Secretary shall make a foreign availability determination under paragraph (1) or (2) on the Secretary's own initiative or upon receipt of an allegation from an export license applicant that such availability exists. In making any such determination, the Secretary shall accept the representations of applicants made in writing and supported by reasonable evidence, unless such representations are contradicted by reliable evidence, including scientific or physical examination, expert opinion based upon adequate factual information, or intelligence information. In making determinations of fore i ^ 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 proposed for export, and scale of production. For purposes of this paragraph, 'evidence' may include such items as foreign manufacturers' catalogues, brochures, or operation or maintenance manuals, articles from reputable trade publications, photographs, and depositions based upon eyewitness accounts.". (c) NEGOTIATIONS ON FOREIGN AVAILABILITY.—Section 5(fK4) is amended by striking out the first sentence and inserting in lieu thereof the following: "In any case in which export controls are President of U.S. maintained under this section notwithstanding foreign availability, on account of a determination by the President that the absence of
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