Finding Common Ground U.S. Export Controls in a Changed Global Environment (1991) / Chapter Skim
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6 The U.S. and Multilateral Export Control Regimes
6 The U.S. and Multilateral Export Control Regimes
Pages 61-105
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From page 61... ...
The Cold War Response By late 1948, the United States had begun for the first time to impose licensing requirements on exports to the Soviet bloc, and Congress formally recognized the need for continuing peacetime controls in the Export Control Act of 1949. By the early 1 950s, U
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From page 62... ...
The Export Control Act of 1949 was superseded by the Export Administration Act (EAA)
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From page 63... ...
Few of the remaining foreign policy controls are significantly related to EastWest tensions. A distinctive feature of foreign policy export controls is that they may be applied with extraterritorial features and without corresponding action in other
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From page 64... ...
The President must certify annually the need and justification for continuing foreign policy controls. The President's ability to apply foreign policy controls was also modified by the 1985 Export Administration Amendments Act, which required that the President consult with Congress and American business organizations before imposing foreign policy controls.
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From page 65... ...
COCOM METHODOLOGY CoCom maintains an International Munitions List (IML) , an International Atomic Energy List (IAEL)
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From page 66... ...
of the Export Administration Act requires that cooperating countries, or countries with export control systems comparable in practice to those in place in CoCom countries, be given preferential licensing treatment similar to that for CoCom countries and distinct from that for other nonproscribed countries. The preferential treatment, called S(k)
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From page 67... ...
Thus, it is difficult to identify * For a complete description of these provisions, see Sections 770, 773~ and 774 of the Export Administration Regulations.
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From page 68... ...
to countries listed in Part 771.18 of the Export Administration Regulations (EAR)
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From page 69... ...
security interests posed by the proliferation of chemical and nuclear weapons and advanced rx~issile delivery systems are addressed through the Export Administration Act, the Arms Export Control Act, and the Atomic Energy Act, as amended by the Nuclear Non-Proliferation Act. Many of the laws are directly related to U.S.
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From page 70... ...
The Nuclear Non-Proliferation Act of 1978 updated the Atomic Energy Act and is the principal authority for the control of nuclear, dual use items. Although the NNPT does not specifically obligate signatories to institute and practice broad export controls, such controls are implicit in treaty commitments.
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From page 71... ...
Country-Specif~c Objectives In addition to the East-West national security controls, nuclear proliferation controls, and other, foreign policy based proliferation controls, the United States targets a number of individual countries for specific export restrictions. Authority for these specific types of controls is found in Section 6 of the EAA and in the Trading with the Enemy Act of 1917, as amended by the International Emergency Economic Powers Act (IEEPA)
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From page 72... ...
Section 6 of the EAA was used to impose extraterritorial foreign policy controls on oil and gas equipment to the Soviet Union in 1982. These controls had a particularly negative effect on U.S.
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From page 73... ...
The United States controls "nuclear-related" or dual use items through its Nuclear Referral List, whereas the International Atomic Energy List consists of items specifically designed or prepared for nuclear use.t EAA NATIONAL SECURITY The management of lists of items controlled for reasons of national security under the EAA is a complex process involving extensive technical review, policy input, internal dispute resolution, and negotiation of the U.S. position in CoCom (see Figure 6-11.
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From page 75... ...
The Commerce Department's Office of Foreign Availability is responsible for as sessing the foreign availability of controlled items in response to claims from industry or the TACs, or on its own initiative. The results of a formal assessment may be either positive or negative; a positive finding indicates that all the criteria for determining foreign availability were met, and a negative finding indicates that they were not.
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From page 76... ...
Disputes that the PCCs cannot resolve are forwarded through appropriate channels to the President, which seldom happens. EAA FOREIGN POLICY Although the Nuclear Non-Proliferation Act is the principal authority for nuclear export controls, controls on items that are not specially designed for nuclear use but which could be of significance for nuclear explosive purposes are implemented under the EAA.
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From page 77... ...
Chemical agents or chemical weapons are controlled under the authority of the Arms Export Control Act, and chemicals that may be precursors of chemical weapons are considered dual use and are controlled under the Export Administration Act. The Australia Group has identified a core list of 11 chemical weapons precursors and a warning list of 39 precursors.
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From page 78... ...
foreign policy and nonproliferation controls outlined in the Export Administration Regulations. · Crime controls An individual license is required to export crime control and detection instruments and equipment and related technical data to any destination except NATO members, Japan, Australia, and New Zealand.
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License Processing NATIONAE SECURITY CASES Three agencies are most prominently involved in national security license processing and review. In the Commerce Department, the Bureau of Export Administration (BXA)
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From page 80... ...
The 1989 processing times for cases that Commerce handled without referral to other agencies ranged from 4 days for exports to CoCom to 28 days for exports to the Soviet Union and East European countries. Processing times in 1989 for cases that required referral to other agencies, either for reasons of national security or foreign policy, ranged from 49 days for exports to CoCom to 129 days for exports to the PRC.
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From page 81... ...
Second, the new GCT, or general license for intra-CoCom trade, eliminates many requirements for validated licenses for exports to CoCom members. The Export Administration Review Board (EARB)
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From page 82... ...
High-ranking intelligence officials and other agency representatives may be asked to attend, as appropriate. The Export Administration Act places certain time limits on case review.
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From page 83... ...
FOREIGN POLICY CASES As previously noted, a number of different controls are maintained for foreign policy or nonproliferation purposes. The Department of Commerce administers the dual use licensing program for each of the different foreign policy controls, with guidance from the Departments of State, Defense, and Energy and the intelligence community.
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From page 84... ...
. The SNEC is chaired by the State Department's Bureau of Oceans and International Environmental and Scientific Affairs and includes representatives from the Defense, Energy, and Commerce Departments, the Nuclear Regulatory Commission, and the Arms Control and Disarmament Agency (ACDA)
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From page 85... ...
The Customs enforcement program covers all export control laws, including the Export Administration Act, Arms Export Control Act, Atomic Energy Act, and Trading with the Enemy Act, as well as other, unrelated laws. Interdiction efforts related to
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Although the Arrns Export Control Act contains provisions for civil penalties, the State Department has no mechanism for adjudicating contested penalties. The Commerce Department's Office of Export Enforcement focuses solely on enforcement of the Export Administration Act.
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There is no cross-referencing between the Commodity Control List and Munitions List and very little public guidance for exporters on how to determine which regime applies to their exports. Although the International Traffic in Arms Regulations contain a procedure for establishing commodity jurisdiction whereby the Office of Defense Trade Controls determines (on written request and in consultation with the State, Commerce, and Defense Departments)
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From page 90... ...
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From page 91... ...
91 en E V)
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From page 93... ...
Licensing Complexity A complex pattern of overlapping and sometimes conflicting regulations must be understood by exporters even though no single agency's responsibilities span more than one set of regulations. The license process for items under the International Traffic in Arms Regulations is considerably different from that for items under the Export Administration Regulations.
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From page 94... ...
Overlapping Enforcement Domestically, overlapping jurisdiction and lack of communication between Customs and the Commerce Department Office of Export Enforcement have sometimes resulted in their working on the same case without each other's knowledge. The Export Administration Act, as amended, states that the Customs Service and the Commerce Department can conductseparately or mutually EAA-related investigations within the United States.
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From page 95... ...
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,*
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From page 96... ...
control lists. Despite repeated calls to "balance" military criticality with economic concerns, the only balancing factor explicitly recognized in the list construction process is the foreign availability, or controllability, of items.
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SOURCE: U.S. Department of Commerce, Bureau of Export Administration.
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From page 98... ...
Action was still blocked into 1990 by bitter interagency dissension. Similarly, in discussions in 1989 on whether to decontrol personal computer technology to the Soviet Union, the Commerce and Defense Departments sharply disputed almost every element of the congressionally stated criteria for determining foreign availability.
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From page 99... ...
Although the Export Administration Review Board's process for resolving disputed licenses has worked fairly successfully for exports to proscribed destinations, as of late 1990 there was no parallel system for exports to nonproscribed countries or for proliferation cases. The insufficient procedures for dispute resolution in licensing decisions cause further tension between agencies and disadvantage U.S.
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reexport controls arises when they are imposed in connection with U.S. unilateral foreign policy objectives and when their application is complex, such as the rules for parts, components, and technical data.
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From page 101... ...
Insufficient,Iudicial Review The Export Administration Act generally exempts Commerce Department actions from the judicial review provisions of the Administrative Procedure Act. The Omnibus Trade and Competitiveness Act of 1988 provided limited judicial review only for Commerce Department civil enforcement actions.
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From page 102... ...
What courts can do, however, is correct agency errors in interpreting and applying statutory provisions, for example, a failure to dismantle unilateral controls when such action is mandated by Congress or the imposition of new foreign policy controls when statutory criteria have not been satisfied. Industry Participation The Export Administration Act provides a formal mechanism for industry participation in the national security export control process.
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, and 3.2(b) , respectively, Export Administration Act.
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From page 104... ...
to restrict the export of goods where necessary to protect the domestic economy from the excessive drain of scarce materials and to reduce the serious inflationary impact of foreign demand." Arms Export Control Act, Public Law, 90-629. Senate 2778: "In furtherance of world peace and the security and foreign policy of the U
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From page 105... ...
National Security Export Controls and Global Economic Competition (Washington, D.C.: National Academy Press, 1987)
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