Radiation Hardened Chips For China

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Bureau of Export Administration
Washington, D.C. 20230

January 13, 1999

Mr. Charles R. Smith

Dear Mr. Smith:

This is in response to your Freedom of Information Act (FOIA) request to the Department of Commerce dated June 1, 1998 in which you request all information on the sale or export of radiation hardened microprocessor or microchip technology to China or Russia from 1993 to present.

Your request was referred to the Bureau of Export Administration (BXA). Technology Radiation hardened microprocessors or microchips falls within Export Controls Classification Number (ECCN) 3E001 or 3E01. This ECCN also includes technology for numerous other electronics components, equipment and systems. It also includes applications for "deemed exports," i.e. non-U.S. citizens employed by U.S. firms in the U.S. to work with controlled microprocessor technology. In order to identify the specific technology you requested a manual search and review of each line item was required.

For the period of your request, we issued two licenses for Russia and three for China for the export of microprocessor technology. Please keep in mind that when a license has been approved for export, we have no information which indicates that a sale or export actually took place.

BXA is unable to provide you with any more detailed information on these exports. Specific information on applications to export technology for microprocessors or microchips to China or Russia is being withheld under FOIA subsection (b)(3), which protects from FOIA disclosure matters which are:

  specifically exempted from disclosure by statute..., provided
  that such statute...(B) establishes particular criteria for
  withholding or refers to particular types of matters to be

5 U.S.C.A. 552(b)(3) (1996 and Supp.1998).

The statutory provision which specifically exempts this information from disclosure is section 12(c) of the Export Administration Act of 1979, as amended (the Act) (50 U.S.C.A. app. 241 l(c) (1991 and Supp. 1998)). Section 12(c) states, in pertinent part, that:

  .. information obtained for the purpose of, consideration of,
  or concerning, license applications under this Act shall be
  withheld from public disclosure unless the release of such
  information is determined by the Secretary to be in the
  national interest.

This section does not merely authorize maintaining the confidentiality of information obtained under the Act, but requires that such information not be disclosed unless its release is determined to be in the national interest. Consistent with the criteria of section 12(c), in the absence of a national interest determination authorizing release of information responsive to your request, any such information cannot be released.

The authority provided by section 12(c) is supplemented by authority contained in the International Emergency Economic Powers Act (50 U.S.C.A. sections 1701 - 1706 ( 1991 & Supp. 1998)), Executive Order 12924 (3 CFR, 1994 Comp., p. 916 (1995)), as extended by Presidential Notice on August 15, 1995 (3 CFR, 1995 Comp., p. 501 (1996)), August 14, 1996 (3 CFR, 1996 Comp., p. 298 (1997)), August 13, 1997 (3 CFR, 1997 Comp., p. 306 (1998), and August 13, 1998 (63 Fed. Reg. 44121, August 17, 1998) and the Export Administration Regulations (15 CFR Parts 730-774 (1998)).

This is the initial determination for your request. You have the right to appeal administratively the denial of any records withheld within 30 days of the date of this letter. If you decide to file an appeal, address it to the Assistant General Counsel for Administration, U.S. Department of Commerce, room 5898C, Washington, D.C. 20230. Include a copy of your request, the initial denial, a statement of the reason why the records should be made available, and a statement of why the initial determination was in error. Both the appeal letter and the envelope should be clearly marked "Freedom of Information Appeal."

James A. Lewis
Office of Strategic Trade
and Foreign Policy Controls


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