Finding Common Ground U.S. Export Controls in a Changed Global Environment (1991) / Chapter Skim
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9 Elements of a New Response: The U.S. Control Regime
9 Elements of a New Response: The U.S. Control Regime
Pages 138-153
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From page 138... ...
domestic policy process for export controls is characterized by significant policymaking and structural deficiencies. Multiple and overlapping administrative agencies, statutes, and regulations confound those attempting to use the system.
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From page 139... ...
POLICY FORMULATION A workable regulatory scheme and efficient administrative structure require strong policy direction. The executive branch must formulate an efficient and coherent policy development framework and provide an appropriate administrative structure to ensure that policy is properly executed, particularly because the absence of such guidance in the past has led to deficiencies in the policy process.
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From page 140... ...
* Since the National Security Act of 1947 and subsequent legislation give the President authority to provide detailed instructions on key components of export control policy, an NSD should be the President's vehicle for the formulation and implementation of export control policy.
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From page 141... ...
Ultimately, strong presidential leadership is required if the export control policy system outlined above is to work effectively. NATIONAL SECURITY EXPORT CONTROL INTERAGENCY GROUPS Under National Security Decision Directive 10, authority is granted to establish interagency working groups deemed important to U.S.
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From page 142... ...
The guidance regarding process methodology should cover at least the following areas: · Establish interagency methodology for list construction, including criteria or standards for determining military criticality, economic costs, and other factors. · Specify agencies responsible for assessing the national security importance of controlled items and clarify priorities (or burden of proof)
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From page 143... ...
export control policy, which is a major defect of the current system, presidential guidance should be made public to the extent feasible. Although elements of the NSD might require classification, broad policy concepts and the details of policy execution should be stated publicly.
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From page 144... ...
The goal of the reorganization is to consolidate administration of controls based on an internally consistent set of regulations while keeping broad policymaking and final dispute resolution in the hands of the President and responsible cabinet secretaries in the National Security Council and the Export Control Policy Coordinating Committee.
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From page 145... ...
The emphasis on foreign policy also diverts attention from a focus on commercial matters that must be part of any trade administration system. The Defense Department has been intensively involved with both license review and list construction, and it has substantial technical expertise on export control in its Office of the Under Secretary for Acquisition and its Defense Technology and Security Administration.
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From page 146... ...
The improved policy formulation process proposed here would alleviate some of the current inevitable mixing of policy formulation and execution in an agency charged with both export regulation and promotion. In this regard, the panel has determined to its satisfaction that BXA's export administration functions are sufficiently separate from the export promotion activities of the Commerce Department.
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From page 147... ...
Harmonization of varying statutory authority will demand strong executive branch leadership and extensive cooperation on the part of Congress. Although the proposed changes would require some statutory revision and some transfer of functions among executive branch agencies, responsibilities for policy formulation would remain with the appropriate departments, subject to coordination with congressional bodies and the mechanism for interagency policy formulation.
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From page 148... ...
Building on progress made so far in the policy process, the United States should continue to make the appropriate shift of administrative resources from traditional East-West export controls to controls directed at proliferation concerns and the end-use verification of more narrowly targeted East-West controls, as suggested by the panel. An interagency task group should regularly review the Munitions and Commodity Control Lists to eliminate duplication and ensure coordination with the CoCom Industrial List.
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From page 149... ...
The courts, which have traditionally deferred to the executive branch on matters of policy, would afford appropriate latitude for agency discretion. Congress has already afforded a significant measure of due process to parties that are the subject of civil enforcement proceedings under the EAA, including the opportunity to be heard before an administrative law judge and to seek judicial review under standards identical to Section 706 of the APA, that is, reversal for lack of substantial evidence or for abuse of agency discretion or error of law.
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From page 150... ...
Questions the study should address include the following: · What are the requirements for enforcement in the various export control laws and how do they differ for the Export Administration Act, Arms Export Control Act, Atomic Energy Act, Nuclear Non Proliferation Act, International Emergency Economic Powers Act, and the Trading with the Enemy Act? · To what extent are there problems with enforcement of the Export Administration Act?
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From page 151... ...
The committee should have the following features: · Charter Advise the government on all forms of export controls that may be authorized by law or executive order. Responsibilities would include evaluation of and recommendation for the following: - the role and value of export controls in achieving national obJectlves; - the effectiveness and impact of current and proposed control policies, methodologies, and processes; and improved approaches to achieving national objectives through controls or alternative means.
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From page 152... ...
Such participation should include substantial in volvement in interagency meetings, from list construction and review all the way through to the end of the CoCom meetings. · Technical advisory committees should be supported with re sources (provided equally by the Commerce, State, and Defense Departments)
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From page 153... ...
It was for this reason that the previous Academies' study, the Allen report, recommended that the Commerce and Treasury Departments participate in National Security Council meetings on export controls. The Department of Commerce is not a statutory member of the National Security Council.
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