Export Control Act provides for civil penalties, the State Department does not have a comparable system. Both the Customs Service and the Treasury Department's Office of Foreign Assets Control use what can be characterized as a primitive "show cause" civil penalty process without an administrative law judge. The use of a denial order is peculiar to the Export Administration Act,* and a number of export control statutes, including the Trading with the Enemy Act and the Atomic Energy Act, lack civil enforcement provisions.

Another area of enforcement overlap involves U.S. and foreign enforcement activities. Although the denial order as applied to foreign parties has proven to be an effective enforcement tool, it is generally regarded abroad as an illegitimate exercise of U.S. authority. Also controversial is denial of U.S. import and government contracting privileges to foreign parties not abiding by U.S. or multilateral export control measures. Such denials now apply only to foreign exports in violation of multilateral security controls, but they have been proposed for other situations. Unilateral U.S. adoption of extraterritorial sanctions such as these may seriously undermine U.S. efforts to achieve effective export control cooperation.

Despite the need for multilateral action, Customs and BXA officials report that while other CoCom governments are generally cooperative in assisting U.S. investigations, they seldom initiate their own investigations or request information from the United States on the credibility of end users. Some CoCom countries use the U.S. Table of Denial Orders as a list of potentially unreliable end users, but other CoCom countries do not recognize that list at all. Further, there is no CoCom-wide mechanism for identifying suspicious parties or parties that have been proven unreliable.

Outdated and Confusing Control Lists

The system of U.S. list management suffers from a lack of clear definitions and criteria for control and decontrol, as well as the widely varying formats and structures that exist in domestic and international lists. The Militarily Critical Technologies List is supposed to be the basis for U.S. proposals for items on the CoCom Industrial List and U.S. Commodity Control List. However, many items that are not on the MCTL remain on the CoCom and U.S. lists, and the United States has not proposed their removal. A recent report by the Institute for Defense Analyses evaluated the CoCom Industrial List on the basis of control parameters in the MCTL. Of 115 controlled categories examined, the report recommended additional controls for 17 percent of the categories, no change for 13 percent, deletion for 10 percent, and some decontrol of 60 percent (69 categories).16The fact


The provision for a denial order under the AECA might be redundant since every munitions case is reviewed on an individual basis and may be denied if the parties involved are not reliable.

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