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THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 61 6 The U.S. and Multilateral Export Control Regimes DEVELOPMENT OF THE EXPORT CONTROL REGIMES In 1940, following the outbreak of war in Europe, Congress gave the President authority to control the export of "militarily significant" goods and technology, as well as arms. Following World War II, U.S. export control policy began for the first time to assume important peacetime dimensions.* It is significant that national security during this period was being defined largely in terms of the importance of conserving supplies of critical materials, rather than in strategic, ideological, or other terms. 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 1950s, U.S. and North Atlantic Treaty Organization (NATO) strategy was firmly rooted in the need to contain Communist expansionism (now including China) and to maintain the political and territorial integrity of the West (which by this time included Japan). In 1955, the NATO alliance was formally opposed by the newly established Warsaw Pact. * See Appendix G for a more detailed discussion of the evolution of U.S. export control policy.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 62 The primary objective of the export controls authorized in the Export Control Act then became to prevent or delay improvements in Warsaw Pact (and Chinese) military capabilities that could be accomplished or facilitated through the acquisition of Western technology and end products. This objective derived in large measure from a recognition that, for political and economic reasons, it was neither possible nor even desirable for the West to maintain numerical equality with the mobilized troop strength or fielded conventional weaponry of the Warsaw Pact countries. This recognition led to the "force multiplier" strategy of maintaining technological superiority over potential adversaries. An inevitable outgrowth of this strategy was the control of exports of goods and technology that had commercial, as well as military, applications. Thus, the NATO decision in the early 1950s to rely on force multipliers also locked the alliance into an active policy of controlling the export of militarily significant goods and technology, including arms and so-called dual use* items, which has continued until the present day. The Coordinating Committee for Multilateral Export Controls (CoCom),â was established in 1949 as an informal forum associated with NATO to coordinate national export control policies and review potential exports to the Soviet Union and other proscribed destinations. U.S. Export Control Policy The Cold War strategy was translated in the United States into laws governing trade in arms and goods with significant military utility. The Arms Export Control Act (AECA) of 1976, which succeeded the Battle Act of 1954, authorized the President to control the export and import of defense articles and services. Although preventing Cold War adversaries from acquiring military items is a function of export controls on defense articles and services or munitions items, the stated rationale for munitions controls is to further U.S. foreign policy, world peace, and security. The Export Control Act of 1949 was superseded by the Export Administration Act (EAA) of 1969 and 1979. The objectives of the Export Administration Act of 1979, as amended, are threefold: â¢ The short supply objective. "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." * A dispute has continued over how to distinguish between exports to be controlled as arms or munitions and exports to be controlled as "dual use," that is, items not inherently military in character. â The CoCom participants currently are Australia, Belgium. Canada, Denmark, France, Germany, Greece, Italy, Japan, Luxembourg, the Netherlands, Norway, Portugal, Spain, Turkey, the United Kingdom, and the United States.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 63 â¢ The national security objective. "To restrict the export of goods and technology which would make a significant contribution to the military potential of any other country or combination of countries which would prove detrimental to the national security of the United States." â¢ The foreign policy objective. "To restrict the export of goods and technology where necessary to further significantly the foreign policy of the United States or to fulfill its declared international obligations."1 To implement the national security objective, Section 5 of the EAA requires the President to establish a list of countries and a list of commodities and technologies controlled for reasons of national security. The decision on targeted countries for national security purposes must take into account several factors, including (1) the extent to which a particular country's policies are adverse to the national security interest of the United States; (2) whether the nation is Communist or non-Communist; (3) the nation's current and potential bilateral relationship with the United States, other countries that are friendly with the United States, and countries that are hostile to the United States; (4) the nation's nuclear weapons capability and its record of compliance with nuclear weapons agreements (e.g., the Nuclear Non-Proliferation Treaty, NNPT) to which the United States is a party; and (5) any other factors that the President may deem appropriate. With respect to trade with CoCom countries and countries cooperating with CoCom, the act directs the President to certify those countries whose export control programs meet certain standards outlined in the law. With limited exceptions, the export of goods to certified countries may not be controlled. To date, the executive branch has not certified any countries as meeting the standards in the law. Section 5 of the EAA, as amended in 1988, also states that no unilateral national security controls can be maintained, except on items for which it is determined there is no foreign availability. Section 6 of the EAA concerns the foreign policy objective. The denial of exports, or in some cases, the offer of renewed access, as a source of political influence or leverage has been an attractive instrument in the conduct of U.S. foreign affairs for many years. This has been increasingly true as other traditional foreign policy instruments, such as the threatened or actual use of military force, have become less viable in some circumstances. The denial of exports is a prerogative jealously guarded by the administration and the Congress, and it is employed in support of an enormously broad range of policy objectives: from emphasizing the seriousness of human rights violations to addressing the proliferation of nuclear and chemical weapons. Few of the remaining foreign policy controls are significantly related to East-West tensions. A distinctive feature of foreign policy export controls is that they may be applied with extraterritorial features and without corresponding action in other
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 64 countries. As a result, they have caused serious damage both to the reputation of the United States as a reliable trading partner and to the competitiveness of U.S. companies whose major foreign competitors are not similarly constrained.* The EAA renewal in 1979 added a provision requiring all foreign policy controls to be reviewed annually. 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. The Congress also specified that, prior to imposing such controls, the President should determine that reasonable efforts have been made to employ diplomatic or other alternative means to achieve the purpose of the proposed controls. In the event that foreign policy controls are imposed, the President is directed to "take all feasible steps" to secure the cooperation of other governments in establishing comparable export controls. Exports that fulfill contracts or agreements entered into prior to the date on which the President announces the intention to impose foreign policy controls may not be restricted unless the President determines that the export would constitute a breach of the peace or a direct contribution to the situation posing the threat. CoCom The NATO response to the Cold War through CoCom has evolved since its inception in 1949, and CoCom has undergone major organizational and political changes in the past five years. The increasing ability of newly industrializing countries to produce CoCom-controlled goods has necessitated either decontrolling all goods not produced exclusively in CoCom countries or including those third countries within the control process. In addition, the highly publicized Toshiba-Kongsberg illegal sale of high-precision, multiaxis milling machines (see Chapter 4) focused attention on each member's political commitment to CoCom and the effectiveness of the group as a whole. Although the operational environment and political attention to the organization have changed over time, the fundamental rule of decisions by consensus,â * This fact was substantiated by information collected on the panel's European, Asian. and Canadian fact-finding missions. â Decision by consensus requires that no member dissent from the decision. not necessarily that every member express unconditional support for the decision. This rule of consensus applies to all CoCom decisions.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 65 which applies to list review, case review, and the determination of proscribed countries, remains unchanged. COCOM METHODOLOGY CoCom maintains an International Munitions List (IML), an International Atomic Energy List (IAEL), and an International Industrial List (commonly referred to as the Industrial List, or IL). The three lists are reviewed completely on a four-year cycle, but the Industrial List is given primary attention. In June 1990, CoCom members agreed to overhaul the list of controlled items by creating a new "core list" to replace the current Industrial List. The core list exercise is expected to be completed in the spring of 1991. CoCom members collectively determine proscribed destinations. They also collectively review all applications to export IL goods at the "general exceptions" level (i.e., the level of goods for which a general embargo is assumed and approvals, while possible, are the exception). For some IL entries, "favorable consideration" parameters have been established for items that may be approved for export to appropriate destinations and end uses, and "administrative exception notes'' have been established for items that the members consider warrant national control, but not collective review. CoCom itself has no independent methodology for constructing the lists of items to be controlled, because the lists are based on national submissions of items for control or decontrol. CoCom did, however, identify in 1978 criteria for "strategic" items as guidance for national systems. The strategic criteria include (1) materials, equipment, and technology specifically designed for and used in national military systems; (2) unique technology that, if acquired, would be of significant assistance to an adversary's military capability; and (3) materials, equipment, and technology regarding which proscribed countries are so deficient that, in the event of war, the gap could not be closed within a reasonable period of time. The IML contains items meeting the first criterion; the IAEL and IL contain dual use items meeting the second and third criteria. The CoCom list of proscribed countries has remained virtually unchanged since the organization's inception, with one notable exception. In 1985, the United States initiated a change in the status of the People's Republic of China (PRC) as a controlled destination, which was accepted by CoCom. As a result, the technical parameters for goods requiring CoCom review for export to the PRC are less restrictive than for other proscribed countries. This threshold for CoCom review is known as the "China Green Line." In addition, CoCom agreed in June 1990 to extend special treatment in limited areas to Czechoslovakia, Hungary, and Poland and to extend broad special treatment eventually to countries that represent a lesser strategic threat and
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 66 have adopted appropriate safeguard systems to protect controlled technology imports. THIRD COUNTRY COOPERATION The original goal of the Third Country Initiative, now called Third Country Cooperation (TCC), was to encourage third countries to adopt five essential elements outlined by CoCom as constituting an effective control program. The essential elements are as follows: 1. Acceptable import certificate and delivery verification documents (IC/ DV) 2. Control over reexports of CoCom-origin, controlled goods 3. Control over indigenous exports of CoCom-controlled goods 4. Cooperation in prelicense and postshipment checks 5. Enforcement cooperation (includes cooperation in policing transshipments and free-trade zones) CoCom partners agreed on primary and support assignments to approach a number of newly industrializing countries concerning cooperative agreements. A permanent working group, the Third Country Cooperation Working Group, was established to track progress in completing cooperative agreements. CoCom members are committed to support agreements reached with third countries and to use the control mechanisms installed in such countries. Some CoCom countries have been reluctant to engage third countries in formal negotiations, primarily because they are uncomfortable with the extraterritorial nature of the TCC requirements. This lack of effort has been largely overlooked by the United States, in part because U.S. officials doubted the commitment of CoCom partners to negotiate agreements containing all five elements. All CoCom countries use the IC/DV documents available from cooperating third countries to some degree. The real discrepancy in practice is in the area of reexports. Unlike the United States, other CoCom members expect that any general export control program put in place in a cooperating country will sufficiently cover reexports of CoCom-origin goods. Thus, no other CoCom partner requires the type of authorization for reexport out of a CoCom or cooperating country required by the United States. The end result is a serious disadvantage for U.S. economic interests. Section 5(k) 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 5(k) benefits, consists of the special or general license practices that automatically apply to CoCom
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 67 members. U.S. officials have considered the 5(k) benefits as negotiating tools with third countries and have promised to grant the benefits incrementally in accordance with progress in implementing the five essential CoCom elements. Nine distinct licensing benefits are available to third countries, although two of the provisions (G-Com and G-CEU) are outdated and are being eliminated. (Table 6-1 identifies the types of licenses available to specific cooperating third countries.) Given the current licensing guidelines and processing times for most third countries, however, the only benefits of any significant value are the enhanced distribution license, permissive reexport exceptions, the broad general license for CoCom (G-CoCom), and the new general license for intra-CoCom trade (GCT).* No country outside CoCom currently is eligible for GCT, although Switzerland and Finland receive all the other benefits, and Austria was expected to receive the same package by the end of 1990. There are no CoCom-wide economic benefits to third countries for cooperation and no real penalty for noncooperation. In reality, most CoCom partners rarely restrict trade in CoCom-controlled goods with noncontrolled countries, except for trade in munitions and proliferation-related items. Further, most CoCom partners do not have the licensing resources to distinguish among nonproscribed destinations and may not even offer any special licensing privileges for exports to other CoCom countries. A COMMON STANDARD OF LICENSING AND ENFORCEMENT; INTRA-COCOM TRADE In January 1988, an ad hoc working group on the "common standard level of effective protection" was established to improve harmonization of export controls. The establishment of this working group followed several special and high-level meetings to "reenergize" CoCom. The "common standard" working group identified the elements of effective licensing and enforcement systems, which were then approved by the CoCom Executive Committee. All members were requested to submit analyses of their systems based on the agreed elements. The working group reviewed the submissions and summarized the basic areas for improvement. Members agreed at the June 1990 High-Level Meeting to comply fully with all elements by April 1991. Members have repeatedly stated that while equally effective measures are essential, identical measures are not necessary. Thus, it is difficult to identify * For a complete description of these provisions, see Sections 770, 773. and 774 of the Export Administration Regulations.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 68 TABLE 6-1 Date of Receipt of 5(k) Export Licensing Benefits, by Country Benefit Austria Finland Singapore Sweden Switzerland G-Coma 12-1-87 8-26-87 10-21-87 7-17-87 8-28-87 GCGb 12-1-87 11-15-88 10-21-87 7-17-87 8-28-87 G-CEUc 11-15-88 7-17-87 8-28-87 15/15 dayd 3-1-88 8-26-87 8-28-87 PRC reexporte 12-1-87 11-15-88 8-28-87 Enhanced DLf 11-15-88 6-20-86 G-CoComg 7-11-89 7-11-89 Reexport to 7-7-89 7-7-89 CoComh GCTi NOTES: The dates indicate the day on which a Federal Register notice appeared granting the benefit to the country. South Korea signed a Memorandum of Understanding with the United States in 1987, but the agreement was not ratified by the Korean parliament until 1989. South Korea was scheduled to receive GCG and 15/15 day licensing benefits in late 1990. Further benefits are predicated on implementation of the agreement. a General license for CoCom and cooperating countries, G-Com, authorizes exports under general license of administrative exception note items (not advisory notes for the People's Republic of China, PRC) to countries listed in Part 771.18 of the Export Administration Regulations (EAR). G- Com was almost entirely subsumed in general license free-world, GFW, as expanded by the Omnibus Trade and Competitiveness Act of 1988. b General license for cooperating governments, GCG, allows for export under general license of all controlled national security items to government agencies of countries designated as cooperating in Part 771.14 of the EAR. c General license for certified end users, G-CEU, authorizes the export under general license of all national security controlled items, except supercomputers, to any entity that is "controlled in fact" by the government of the cooperating countries listed in Part 771.20 of the EAR. d The "15/15" benefit requires that license applications for countries listed in Part 770.14 of the EAR be processed within 15 days after receipt, unless an extension is requested, in which case the government has an additional 15 days to complete the license processing. e PRC permissive reexport allows countries listed in Part 774.2(j) of the EAR to reexport goods below the PRC "Green Line" to the PRC without prior approval from the U.S. government. f The enhanced distribution license, DL, benefit makes a higher threshold of goods eligible for export under the distribution license for countries listed in Supplements 2 and 8 to Part 773 of the EAR. g General license for CoCom, G-CoCom, authorizes the export under general license of items that require only notification to CoCom (not full review), including items below the PRC "Green Line" as of August 1988, to countries listed in Part 771.24 of the EAR. h Permissive reexport to CoCom authorizes the reexport of all national security controlled items, with limited exceptions, to and among countries listed in Part 774.2(k) of the EAR without prior U.S. government authorization. i General license for intra-CoCom trade, GCT, was not in final form as of December 1, 1990, but was published for comment in June 1990. GCT would authorize exports under general license of all national security controlled items, with limited exceptions, to CoCom countries. SOURCE: U.S. Department of Commerce, Bureau of Export Administration.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 69 specific deficiencies in any system since judgments of its effectiveness are subjective. Another working group, this one on intra-CoCom trade (ICT), was established to review export control practices among members. This working group considered a number of options to reduce the burden of licensing practices for trade among members while minimizing the risk of diversion. The initial proposals involved the exchange of multiple copies of customs documents between exporting and importing governments and some combination of exporter and importer registration with their respective governments. The proposal that was ultimately accepted was a joint U.S.- Canadian scheme that retains a paper trail and some responsibility on the part of both the exporter and importer, while virtually eliminating government involvement. Beyond these elements, CoCom members have not yet agreed on the scope of a new ICT system. This includes both the goods and the destinations that are eligible for license-free treatment. The United States supports the exclusion of a limited list of items from license-free treatment until all common standard elements are in place, as well as the eventual extension of license-free treatment to cooperating countries. All CoCom members have accepted, in principle, the exclusion of some items from license-free treatment until the target date for complete implementation of the common standard. However, members do not agree on the need for a common or joint list, opting instead for national exclusion lists. Most members also favor independence in determining destinations eligible for license-free treatment. The Proliferation Challenge The challenges to U.S. security interests posed by the proliferation of chemical and nuclear weapons and advanced missile 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. obligations internationally. NUCLEAR WEAPONS The Nuclear Non-Proliferation Treaty of 1968 formed an agreement between the nations that possessed nuclear weapons in 1968 and those that did not. The nuclear "haves" pledged to work toward nuclear disarmament and to share peaceful nuclear technology with the "have nots." In return, the other signatory nations pledged not to attempt to acquire nuclear weapons.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 70 The NNPT currently has over 140 signatories.* In addition, regional agreements exist that preclude the placement of nuclear weapons in Latin America, outer space, the seabed, the South Pacific, and Antarctica. U.S. export controls on nuclear-related items were originally based on authority in the Atomic Energy Act of 1954. 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. In 1974, a group of countries signed a letter of agreement prohibiting the export of certain items to "non-weapon" states without a pledge of "no explosive use" and acceptance of International Atomic Energy Agency (IAEA) safeguards. The list of items triggering the need for assurances and IAEA safeguards became known as the "trigger list," and the group became known as the Zangger Committee,â after its first chairman, Claude Zangger. In 1978, another group of countries committed themselves to similar, but more comprehensive export guidelines in support of nonproliferation goals and added technology and technical assistance to the "trigger" list. This group is known as the Nuclear Suppliers Group (NSG),â¡ or London Suppliers Group (the group originally met in London). MISSILE TECHNOLOGY U.S. missile technology controls were implemented on July 31, 1987, by both the Departments of Commerce and State for items under their respective control, as part of the multilateral Missile Technology Control Regime (MTCR). The MTCR was developed in response to the challenge of missile proliferation and the ensuing threat to the security of its members and to world peace. The arrangement developed from the conventional arms talks of the 1970s into a formal arrangement in 1987 among France, Germany, Japan, Canada, the United Kingdom, Italy, and the United States. Australia, Spain, the Netherlands, Belgium, and Luxembourg have since joined the organization. * Countries of proliferation concern that have not signed the NNPT are Argentina, Brazil, India, Israel, Pakistan, and South Africa. Among countries of concern that have signed the treaty are Iran, Iraq, and North Korea. â The members of the Zangger Committee are Australia, Canada, Czechoslovakia, Denmark, Finland, the Federal Republic of Germany, the former German Democratic Republic, Greece, Hungary, Italy, Japan, Luxembourg, the Netherlands, Norway, Poland, Sweden, Switzerland, the United Kingdom, the United States, and the Soviet Union. (France, although not a signatory to the NNPT or to the letter in question, agreed to abide by the letter's guidelines.) â¡ The members of the Nuclear Suppliers Group are Belgium, Canada, Czechoslovakia, France, the Federal Republic of Germany, the former German Democratic Republic, Italy, Japan, the Netherlands, Poland, Sweden, Switzerland, the United States, the United Kingdom, and the Soviet Union.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 71 The MTCR's purpose is to restrict the export of goods and technology that could be used to produce a missile capable of carrying a nuclear payload. The parameters of control are missiles with ranges greater than 190 miles and payloads of more than 1,100 pounds (300 kilometers/500 kilograms). The MTCR includes guidelines for participants and an annex of items to be controlled, but national export decisions are not subject to group review or consensus. Exports of munitions items on the annex are to be denied to nonmembers, but dual use items can be exported with "appropriate assurances" from the government of the importing country. Multilateral cooperation is based on an agreement not to undercut the export denials of other members and to share intelligence on "projects of concern." CHEMICAL WEAPONS Twenty nations, under the leadership of Australia, have joined what has come to be known as the Australia Group.* The Australia Group identifies chemical precursors that could be significant in the development of chemical weapons and are being sought for such purposes. The Australia Group is meant to be an interim arrangement in anticipation of the Chemical Weapons Convention (CWC) currently being negotiated as part of the Conference on Disarmament. The Australia Group has no formal basis and does not specify required conduct by its participants. Export controls or appropriate restrictions are recommended for trade in the chemicals identified as weapons precursors. Intelligence is shared among the participants on suspected chemical weapons development, and Iran, Iraq, Libya, and Syria have been identified as official targets of export controls. There are no collective sanctions for end-use violations. Country-Specific 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) of 1977. Before imposing controls under the IEEPA, the President must determine that a situation constitutes a national emergency or an "unusual and extraordinary * The Australia Group consists of Australia, Austria, Belgium, Canada, Denmark, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Spain, Switzerland, the United Kingdom, and the United States.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 72 threat." The President invoked the IEEPA in 1990 when Iraq invaded Kuwait in order to authorize the trade embargo against Iraq. Export controls targeted at Cuba, Vietnam, North Korea, and Cambodia are grandfathered under the Trading with the Enemy Act, and controls targeted at Libya and Iran are maintained under the IEEPA, with corresponding controls under Section 6 of the EAA. 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. trade relations because several West European countries had already signed contracts to participate in the construction of a Soviet gas pipeline to Western Europe. The uncompromising stance of the United States on the pipeline and its extraterritorial application of export restrictions damaged long-standing commercial relationships and directly contributed to the perception of the United States as an unreliable trade partner and supplier. If U.S. exports to a specific destination are already controlled, an embargo or increased trade restrictions may be imposed through an executive branch directive to deny, delay, or "closely review" licenses. This type of country- specific restriction was put in place with respect to the People's Republic of China following the Tiananmen Square demonstrations in June 1989. Items subject to U.S. munitions controls can be blocked to destinations without invoking specific regulations. The United States is not the only country to impose export restrictions outside a multilateral regime. A number of countries control items covered by the United Nations arms embargo against South Africa for anti-apartheid reasons, including the European Community (EC) and the Nordic countries. A number of countries restrict the export of military-related equipment to areas either engaged in conflict (e.g., Iraq-Kuwait) or where conflict is imminent. The EC collectively and the United States, the United Kingdom, Japan, France, Canada, Italy, and the Federal Republic of Germany individually ban sales of military equipment to Libya. SPECIFIC CHARACTERISTICS OF U.S. EXPORT CONTROLS Control List Management Like CoCom, the United States separates controlled items into lists of munitions, industrial, and nuclear-related items. The U.S. lists are, respectively, the Munitions List (ML), the Commodity Control List (CCL), and the Nuclear Referral List (NRL). The Department of State (in consultation with Defense) generates and administers the Munitions List. The Department of Commerce, in consultation with Defense and other agencies, generates and administers the Commodity Control List. The Departments of Commerce
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 73 and Energy, with assistance from the Nuclear Regulatory Commission and the national research laboratories. draw up the Nuclear Referral List,* which is incorporated in the CCL. By law, the CCL is to be reviewed annually. The law does not provide for periodic reviews of the Munitions List, and there is no established review cycle for the NRL. Although the U.S. control lists are similar to the CoCom lists, they are not identical. For example, the U.S. Munitions List (defense articles and services maintained under the AECA) covers more items than the International Munitions List, and it is maintained for broader purposes than traditional CoCom objectives. The U.S. Munitions List also controls a number of dual use items that are on the CoCom Industrial List. 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.â 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 6-1). The development of a CoCom core list during the second half of 1990 was handled differently from the usual U.S. list construction process. Prior to the CoCom High-Level Meeting in June 1990, the President directed the Joint Chiefs of Staff to conduct a study of the impact of increased access to Western technology on militarily critical Soviet mission areas. The results of that study figured prominently in the initial U.S. core list proposal to CoCom in June. It is unclear how the list construction process will be modified as a result of the core list exercise, but changes will be necessary, at least to reflect the new categories of controlled goods. Construction and review of the national security aspects of the CCL begin with a reference document known as the Militarily Critical Technologies List (MCTL). The EAA directs the Defense Department to develop a list of militarily critical technologies, in particular: â¢ arrays of design and manufacturing know-how, â¢ keystone manufacturing, inspection, and test equipment, * The list of specially designed nuclear equipment, materials, and facilities is found in 10 C.F.R. and is maintained by the Nuclear Regulatory Commission. â The trigger list associated with the NNPT identifies nuclear items for control to "have-nots" under the NNPT and to nonsignatories. The CoCom IAEL identifies nuclear items for control to CoCom-proscribed destinations, many of which are signatories to the NNPT and possess nuclear weapons capability.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES FIGURE 6-1 U.S. process for generating CoCom proposals 74
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 75 â¢ goods accompanied by sophisticated operation, application, or maintenance know-how, and â¢ keystone equipment that would reveal or give insight into the design and manufacture of U.S. military systems that are not possessed by, or available from sources outside U.S.-controlled countries, and that, if exported, would permit a significant advance in a military system of any such country.2 The Department of Defense (DoD) contracts the task of drawing up the list to the Institute for Defense Analyses (IDA). Primary technical inputs are obtained through a series of technical working groups (TWGs), established and managed by IDA, which are composed of representatives from industry, academia, and government. Interagency technical task groups (TTGs) devise proposed entries for the CoCom Industrial List using information from the MCTL, the existing list, and recommendations from concerned agencies. The TTGs are made up of government experts from the Departments of Defense, Commerce, State, and occasionally, Energy and the intelligence community; industry representatives may serve in an advisory role. The TTGs also receive input from a number of technical advisory committees (TACs), which are made up of industry and government experts and authorized by the EAA. The TTGs forward control list proposals to the Economic Defense Advisory Council (EDAC) Working Group I. This working group, led by the State Department, then communicates the U.S. position to CoCom. The EAA also explicitly calls for the consideration of foreign availability in the list construction and review process. As defined in Section 5 of the EAA, ''foreign availability" exists when any good or technology is available in fact from a non-U.S. source(s) in sufficient quantity and of comparable quality to make the requirement of a validated license ineffective. The Commerce Department's Office of Foreign Availability is responsible for assessing 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. A positive finding may lead to decontrol of the item in question, unless the foreign source(s) agrees to control the item. The results of foreign availability assessments, as well as information from the assessment itself, are ordinarily injected into the list review process by the Department of Commerce. A committee structure exists to resolve disputes over the list construction process for national security controls. The first level for resolving disputes over the control list is also the last level of operational reviewâEDAC Working Group I. It is chaired by the State Department and may include
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 76 representatives of the Defense, Commerce, and Energy Departments, the National Aeronautics and Space Administration (NASA), and the intelligence community. Disputes that are unresolved in Working Group I may be referred to the EDAC itself, which is also chaired by the State Department and includes representatives at the deputy assistant secretary level from the Defense and Commerce Departments, along with other agencies as required. Disputes that are not resolved through the EDAC structure usually reflect disagreements in interpreting basic U.S. policy rather than arguments over matters of a technical nature. The resolution of policy disputes is handled through two policy coordinating committees (PCCs) reporting to the National Security Council (NSC). The PCC on Technology Transfer handles CoCom- related issues at the under secretary level and is chaired by the NSC. The PCC on Non-Proliferation is chaired by the State Department's under secretary for security assistance, science and technology, with an observer from the NSC. It deals with trade issues relating to the spread of nuclear and chemical weapons and missile delivery capabilities. 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. Since nuclear controls are not aimed at traditional national security targets, they often are considered foreign policy controls. In fact, they are covered under Section 17 of the EAA, rather than either Section 5 or Section 6. Four lists identify items controlled for purposes of nuclear nonproliferation: (1) the trigger lists maintained by the Zangger Committee and the Nuclear Suppliers Group; (2) the Nuclear Referral List maintained by the Departments of Commerce and Energy, which is made up of items that are not specially designed or prepared for nuclear uses but that could be of significance for nuclear explosive purposes; (3) 10 C.F.R. 110, which consists of specially designed nuclear equipment, materials, and facilities; and (4) 10 C.F.R. 810, which identifies controlled technology and technical assistance. The Zangger Committee and NSG lists are essentially the same, except that the Zangger list is more specific and the NSG list includes technology. These two lists correspond to 10 C.F.R. 110 and 810. The annex to the multilateral Missile Technology Control Regime identifies two categories of items that could contribute significantly to the development of nuclear-capable missiles. Category 1 of the annex contains munitions items, and most of category 2 covers dual use items. This annex has been
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 77 translated into various entries on the U.S. Munitions List and Commodity Control List. Most of the items listed in the annex fall on the Munitions List. 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. The Department of Commerce administers these controls. MUNITIONS LIST The Arms Export Control Act is the basis for the International Traffic in Arms Regulations (ITAR), which contain the U.S. Munitions List. According to the 1976 AECA, "The President is authorized to designate those items which shall be considered as defense articles and defense services." Four considerations are listed in the ITAR for determining whether something is a defense item: 1. Whether an item "is deemed inherently military in character." 2. Whether an item "has a predominantly military application." 3. The fact that an item has military and civil uses "does not in and of itself determine" whether it is classified as a defense article. 4. "Intended use . . . is also not relevant" to an item's classification. 3 The AECA and, in turn, the President give the State Department complete authority to determine whether an item is a defense article. The list construction process for the Munitions List is not nearly as lengthy or involved as for the CCL because the ML does not contain the same degree of detail on performance parameters or the technical characteristics of controlled items as found in the CCL. Moreover, a large part of the ML construction process is dynamic in that categories, rather than performance parameters, of items are listed and control determinations often are made on the basis of individual interpretations. Regulations Each October, the Department of Commerce publishes the Export Administration Regulations (EAR),4 which state how the Export Administration Act is to be implemented. Changes are published in the Federal Register to update the EAR during the year. Changes in existing regulations or new regulations are first circulated for interagency review and comment; the Office of Management and Budget also reviews the regulations. Public comments are usually sought and are ordinarily summarized with publication of the final regulation in the Federal Register.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 78 The EAR describes items subject to export control and the requirements for their export to various destinations. It also details the potential penalties for violations of the Export Administration Act. The regulations divide the various types of export licenses required into three categories: general licenses, special licenses, and individual licenses. General licenses, with some exceptions, do not require prior government approval, but they must be noted on a Census Bureau Shippers Export Declaration, which is filed with U.S. Customs when an item is exported. Both special and individual licenses require prior government approval, but special licenses allow for multiple and continuing transactions under one validation, whereas individual licenses must be validated on a case-by-case basis. As of December 1990, the destinations listed in the EAR as targeted by the United States for national security purposes were the Soviet Union, Eastern Europe, and the embargoed countries of North Korea, Vietnam, Cuba, and Cambodia. The following is a descriptive listing of the various U.S. foreign policy and nonproliferation controls outlined in the Export Administration Regulations. â¢ Crime control5 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. The purpose of the control is to ensure that U.S.-origin police equipment is not exported to countries whose governments do not respect internationally recognized human rights standards and to distance the United States from human rights violations. â¢ Antiterrorism6 Certain countries are designated by the Secretary of State as supporting terrorism, including North Korea, Cuba, Iran, Libya, Syria, and the People's Democratic Republic of Yemen. An individual license is required to export all national security controlled goods, as well as some aircraft, to these destinations in order to prevent contributions to their ability to support acts of international terrorism. â¢ Regional stability7 The objective of regional stability controls is to deny military items to certain regions of the world where conflict and tension prevail and thereby limit the possibility that American equipment will contribute to the destabilization of such regions. Regional stability controls apply to exports to all destinations, except NATO countries, Australia, Japan, and New Zealand. Commodities subject to individual license requirements include military vehicles and certain equipment used to manufacture military equipment. â¢ Embargoed countries8 There is a presumption of denial for virtually all exports to Cuba, Cambodia, North Korea, Vietnam, and Libya. Controls are also maintained by the Treasury Department under the Trading with the
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 79 Enemy Act. The objective of the embargo is to demonstrate the unwillingness of the United States to maintain normal trade relations with embargoed countries until they take steps to improve relations and/or change their political behavior. â¢ South Africa9 The United States maintains controls, with the presumption of denial, on the export of all national security controlled commodities and technical data to South African military and police entities. Munitions are controlled to all entities pursuant to the United Nations arms embargo of South Africa. In addition, the export of aircraft, helicopters, crude oil, refined petroleum products, and computers and software to any end user in South Africa requires an individual license. â¢ Biological organisms10 The United States maintains controls on the export of certain viruses and bacteria to all destinations except Canada. These controls are intended to prevent the development of weapons for biological warfare. â¢ Nuclear nonproliferation11 Nuclear controls are maintained by the United States for reasons of nonproliferation. License requirements are imposed on commodities and technologies that could be significant for nuclear explosive purposes. Products and technologies affected include, in addition to those contributing directly to nuclear explosives, those that could be used in the production of special nuclear material or equipment. In addition, all commodities and technical data are controlled to sensitive nuclear production facilities in all countries. â¢ Missile technology controls12 This section of the EAR lists certain types of equipment and related technical data that require an individual license for export to all destinations except the United Kingdom, France, the Federal Republic of Germany, Canada, Italy, Spain, Japan, and the Benelux countries. The primary factors for consideration in licensing decisions also are listed. â¢ Chemical weapons13 The United States maintains individual license requirements on the export of 50 precursor chemicals that could be used in the manufacture of chemical weapons. Currently, there is a presumption of denial for exports to Libya, Iran, Iraq, and Syria and to any other destination if there is reason to believe that the chemicals will be used in the production of chemical weapons or otherwise be devoted to chemical warfare purposes. License Processing NATIONAL 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) administers the licensing process for items on the
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 80 Commodity Control List. The State Department's Center for Defense Trade, Office of Defense Trade Controls, formerly the Office of Munitions Control, and its parallel policy arm, the Office of Defense Trade Policy, process licenses for items on the Munitions List. The Defense Department's Defense Technology Security Administration (DTSA) reviews cases referred to it by both the State and Commerce Departments. Although DTSA has no specific statutory export control authority, Section 10(g) of the EAA authorizes a consulting role for the Defense Department in license review, and a 1985 executive order gives DTSA review responsibility for certain dual use exports to noncontrolled destinations that may pose a risk of diversion to a proscribed destination. DTSA also reviews most dual use exports to proscribed destinations. License applications for items controlled under the ITAR may be referred to the Defense Department and other appropriate agencies as necessary. According to data provided by the Center for Defense Trade, approximately 54,000 licenses, with a total value of $57 billion, were processed in FY 1989. The average processing time for munitions cases dropped from 61 days in 1987 to 49 days in 1989, for roughly the same case load. Based on a two-month sample, a further significant decline in processing times was expected for 1990 (see Table 6-2). The State Department reorganized the munitions licensing function under the Center for Defense Trade early in 1990 due, at least in part, to repeated complaints from industry of unnecessary time delays and general incompetence. Additional personnel, resources, and automated licensing equipment have been acquired and continued expansion is planned. According to data provided by the Commerce Department, BXA processed close to 81,000 individual cases, with a value of more than $132 billion, in 1989 (see Table 6-3). Of those cases, 92 percent were approved (valued at more than $122 billion). An additional $34 billion is estimated to be exported under U.S. distribution licenses. The average processing time for all individual cases dropped from 28 days in 1985 to 17 days in 1989. 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. This includes the time required for CoCom to review PRC and Eastern bloc cases. CoCom and U.S. review of exports to the PRC, for example, has been slow since June 1989 (see Table 6-3). Exports to CoCom and other nonproscribed countries that require referral are likely to be very sensitive. The Commerce Department is required by law to issue quarterly reports to Congress on cases pending beyond statutory licensing time limits. These
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 81 TABLE 6-2 License Processing by Center for Defense Trade, Department of State, FY1987âFY1989 Fiscal Year Munitions Average Licenses Processed Processing Time 1987 Number 52,879 61 business days Value (billions) $40.3 1988 Number 51,823 49 Value(billions) $39.9 1989 Number 53,780 49 Value (billions) $56.5 Breakdown of Average Processing Time, April 1âMay 31, 1990 Number Number of Business of Cases Days Nonreferred 6,797 (71%) 4 Referred 2,654 (28%) 36 Weighted average 13 NOTE: Processing time for a license begins when a case is logged in at the Department of State and ends when a licensing determination is forwarded to the exporter. SOURCE: U.S. Department of State, Center for Defense Trade. reports indicate that the large majority (usually 70 percent or more) are held pending further interagency review or dispute resolution. Many delayed cases also may be awaiting government-to-government assurances or the results of prelicense checks. Nonetheless, the cases pending beyond statutory deadlines generally represent less than 1 percent, by volume, of all cases received during the quarter (see Table 6-4). Two additional steps should further expedite the licensing process. First, the Defense and Commerce Departments reached an agreement in 1990 whereby Commerce licenses national security exports to the Soviet Union and Eastern Europe at the administrative exception level without DoD review. 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) exists for resolution of disputes over U.S. national security licenses under the EAA.* The lowest * A revision of the EARB dispute resolution process was in progress at the time of publication. It is anticipated that the revision will expand the role of the EARB to cover foreign policy cases, as well as national security cases.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 82 TABLE 6-3 Department of Commerce License Processing Times (in business days), 1989 1985 1986 1987 1988 1989 All cases Average 28 25 21 17 17 Nonreferred 17 14 10 8 8 Referred 98 59 59 61 67 Nonreferred cases Free worlda 16 13 9 7 7 CoCom 14 10 5 5 4 China 31 23 18 16 21 Eastern bloc 40 45 27 16 28 Referred cases Free worlda 59 38 41 50 50 CoCom 35 26 19 42 49 China 172 172 169 126 129 Eastern bloc 151 146 111 82 83 Disposition of Licenses Processed in 1989 Approved 74,905 = $122.88 billion Returned w/o action 5,677 = 9.08 Rejected 484 = 0.40 Total 81,066 = 132.36 NOTE: Processing time for a license begins when a case is assigned to a licensing officer at the Department of Commerce and ends when a licensing determination is made. a Department of Commerce designation for all nonproscribed, non-CoCom countries. SOURCE: U.S. Department of Commerce, Bureau of Export Administration. level of the EARB is the Operating Committee, which reviews agency positions on U.S. licenses for export to proscribed destinations and to the PRC. It is chaired by the director of BXA and consists of representatives at the level of office director from the Defense and State Departments, among other participants. Disputes unresolved at this level may go to the Advisory Committee on Export Policy, an assistant-secretary-level body. The third and highest level is the cabinet-level EARB itself. The board is chaired by the secretary of commerce, and the secretaries of defense and state are members. 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. EARB guidelines attempt to manage dispute resolution within those time frames. Once the Commerce Department has received licensing recommendations from other agencies and made a preliminary licensing decision, other departments are given 10 days to either accept the decision or take the matter
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 83 TABLE 6-4 Department of Commerce License Cases Pending Beyond Statutory Deadlines Reasons for Pending Cases Period Cases Over Interagency Awaiting PLCsc Completeda Deadline Reviewb Government Assurances First 21,688 911 754 145 134 quarter 1989 Second 21,136 775 578 69 163 quarter 1989 Third 21,610 797 595 51 137 quarter 1989 Fourth 20,783 816 555 48 162 quarter 1989 First 17,523 375 299 32 28 quarter 1990 NOTE: In addition to the reasons outlined above, cases also may be pending receipt of responses to negative consideration (denial) letters or being held without action at the exporter's request. Some cases may be pending for more than one reason. a The number of cases does not include cases referred to the Subgroup on Nuclear Export Control, cases for export to CoCom or fully cooperating countries, or special license cases. b Either currently under interagency review or have required interagency review. c Prelicense cheeks or investigations. SOURCE: U.S. Department of Commerce, Bureau of Export Administration. to a higher level of review. If the Commerce Department does not receive a letter within this time requesting escalation of the case, it proceeds with the license. 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. Basic U.S. trade policy with respect to items related to nuclear and chemical weapons and missile technology is handled by the Policy Coordinating Committee on Non-Proliferation. This PCC, as noted, is chaired by the under secretary of state for security assistance, science and technology and includes representatives at the under secretary level from the relevant government agencies. The committee deals with such issues as the fundamental goals of U.S. controls on items related to proliferation, U.S. efforts to gain international cooperation in controlling certain items, and the executive branch position on legislation related to proliferation activities.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 84 Nuclear The Nuclear Regulatory Commission issues licenses for nuclear research, power plants, special equipment and materials, and items associated with nuclear reactors. The Department of Energy authorizes the provision of technical assistance and information for nuclear technology, as well as any subsequent arrangements for previously exported U.S. nuclear items. The Center for Defense Trade licenses items related to nuclear weapons. The United States currently is the only country that officially maintains controls on a number of nuclear-related dual use items. Department of Commerce individual licenses are required for exports of dual use, Nuclear Referral List items for certain countries, end uses, or end users. An individual validated license is required for the export of any item for which the exporter "knows or has reason to know" that the item will be used in sensitive nuclear activities. There is a presumption of denial of all items to unsafeguarded nuclear facilities. The United States also restricts sales of nuclear-related items to safeguarded facilities if they are in countries where all facilities are not subject to safeguards. Applications to export NRL items are reviewed by the Commerce Department with assistance from the Energy Department. If the Department of Energy deems it necessary, the application is sent to the Subgroup on Nuclear Export Coordination (SNEC). 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). The SNEC forwards its licensing recommendations to the Commerce Department. Disputes on the appropriate licensing action may be referred to the EARB or the PCC on Non-Proliferation, as appropriate. Missile Technology License applications for munitions items that are also subject to missile controls are reviewed based on the stated country of destination and end use. The State Department's Center for Defense Trade may seek recommendations from DoD, ACDA, and the intelligence community in making a licensing decision. License applications for dual use items that are subject to missile controls are reviewed based on the factors listed in Part 776.18 of the EAR as follows: â¢ assessment of the end use; â¢ significance of the export in terms of the potential development of missiles capable of delivering nuclear weapons;
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 85 â¢ capabilities and objectives of the missile and space programs of the recipient country; â¢ nonproliferation credentials of the importing country; and â¢ types of assurances or guarantees against use for nuclear weapons delivery purposes or proliferation given in a particular case. The Commerce Department initially reviews license applications to determine the potential contribution of the items to missile development and the sensitivity of the end use and end user based on information from the intelligence community. Applications for items that could make a significant contribution and are destined to countries identified as being of potential concern are referred to the interagency Missile Technology Export Control (MTEC) group, chaired by State's Bureau of Politico-Military Affairs (PM), Office of Weapons Proliferation Policy. The PM bureau chairs MTEC meetings on U.S. export licensing decisions and foreign sales to missile-related programs on alternate weeks. The Commerce and Defense Departments, ACDA, NASA, and the intelligence community are represented in these interagency meetings. Licensing recommendations, including provisions for certain conditions or government-to- government assurances, are forwarded to Commerce. If government-to- government assurances are necessary, they are requested by State from the recipient government on behalf of Commerce. Disputes on the appropriate licensing action may be referred to the PCC on Non-Proliferation. Chemicals The United States requires an individual license for export of core list chemicals to any destination, except other Australia Group members; exports of chemicals on the warning list to Libya, Syria, Iran, or Iraq require an individual license. There is a presumption of denial for applications to export chemicals on the core or warning lists to Libya, Syria, Iran, or Iraq. Applications to export chemicals on the lists to other destinations identified by the intelligence community as being of potential concern are referred by Commerce to State's Economic Bureau. Disputes on the appropriate licensing action may be referred to the PCC on Non-Proliferation. Enforcement The U.S. Customs Service and BXA's Office of Export Enforcement share responsibility for export enforcement functions. 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
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 86 the Export Administration Act are carried out by approximately 100 Customs inspectors, about 300 criminal investigators, and efforts at international cooperation through 19 overseas offices. The Customs enforcement program involves random inspections of exports at ports of exit, industry outreach, and investigations of potential violations. Potential criminal cases are forwarded to the Department of Justice for prosecution. Cases for civil penalties under the EAA must be forwarded to the Department of Commerce. Although the Arms 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. It has eight domestic offices and two overseas posts. Enforcement operations include industry outreach and a number of preventive measures, such as license screening and prelicense checks of the stated end use and end user. The Office of Export Enforcement also investigates potential export control violations. The Commerce Department may either forward cases to the Department of Justice for criminal prosecution or levy civil penalties for violations, or both. The Commerce Department also may deny export privileges to both national and foreign parties by placing them on the ''Table of Denial Orders" (TDO). Parties denied export privileges on the TDO may not take part in any way in any export-related transaction. Among the positive developments in export enforcement are the steps Customs has taken toward an automated data entry system for shipping and trade documents and a greater emphasis by both agencies on industry outreach and on violations of controls on nuclear, missile, and chemical items. The Commerce Department has also upgraded its enforcement training programs to include comprehensive training on the Export Administration Act. BASIC PROBLEMS OF THE U.S. EXPORT CONTROL REGIMES Multiplicity of Statutes, Agencies, and Regimes Export controls are issued under a multiplicity of statutes with differing objectives and criteria (see Tables 6-5 and Figures 6-2 - 6-4). 14 The statutes themselves were not coordinated at the time they were written and come under the supervision of different congressional committees. Over a dozen agencies, plus the military services, are engaged in administering controls and apply distinct regulatory provisions that often overlap and conflict. The lead agencies in constructing export control policy hold strongly diverse positions corresponding to their separate interests. As a result, these disparate agencies are often unable to integrate the various national security, economic,
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 87 and foreign policy issues and give executive authorities a balanced, coherent view of the key issues. As part of its evaluation of the export control system, the panel asked the Congressional Research Service (CRS) to examine other issue areas in the government characterized by shared authority among multiple regulatory agencies. The CRS was unable to find an analogous area with a comparable number of differing bureaucracies and regulatory categories. A number of solutions to this problem have been suggested in draft legislation and by industry observers, ranging from the creation of a new agency, to consolidation of all functions in one agency, to elimination of all export controls. The objective of any new organizational scheme should be to simplify the administration of export controls and minimize interagency redundancy. Jurisdictional Disputes In many instances it is unclear which administrative agency has jurisdiction over a particular category of items. Neither the trade laws nor the implementing regulations of the various agencies provide clear standards for determining the correct authority covering the export. Fundamental disagreements among the various agencies as to the appropriate working definitions of basic terms that determine jurisdiction, such as "defense article," "militarily critical," and even "national security," have crippled the system and led to acute interagency in-fighting. A disproportionate amount of bureaucratic resources are thus expended in resolving disputes, rather than administering and enforcing the export control system. Broad interpretation of the term "defense article" has resulted in the inclusion on the U.S. Munitions List of many dual use items that are either on the CoCom Industrial List or are not multilaterally controlled at all. As a result, a range of commercially used items, from metal fasteners to air conditioning units to civilian aerospace equipment, are unilaterally controlled as munitions items by the United States. 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) whether the item in question is contained on the Munitions List, there is no effective opportunity for the Department of Commerce to have an equal voice in this process, and there are no accepted criteria for making a decision. This situation has generated calls for making operationally
TABLE 6-5 Matrix of National Security Controls Control Agency Legislationa Scope of Controls Control Regime Purpose Prevent acquisition of Commerce, Bureau of Export Administration Act Militarily critical civil CoCom (Industrial List) militarily critical items Export Administration (EAA) goods and technology by Soviet bloc countries (BXA) State, Center for Defense Arms Export Control Act Defense articles and CoCom (International Trade (CDT) (AECA) services Munitions List) Nuclear Regulatory Atomic Energy Act/Nuclear Nuclear weapons design CoCom (International Commission (NRC)/Energy Non-Proliferation Act and test equipment Atomic Energy List) (AEA/NNPA) Nuclear proliferation Commerce (BXA) EAA/NNPA Dual use products; nuclear None technology; a sensitive nuclear usesc State (CDT) AECA Nuclear weapons design Nuclear Non-Proliferation and test equipment Treaty NRC AEA/NNPA Nuclear power generation, Nuclear Suppliers Group nuclear material, and fuel- (NSG)/Zangger Committee cycle equipment and technology Energy AEA/NNPA Technical assistance and NSG subsequent arrangements THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 88
Control Agency Legislationa Scope of Controls Control Regime Purpose Chemical weapons Commerce (BXA) EAA Chemical weapons Australia Group proliferation precursors State (CDT) AECA Chemical weapons agents None Biological weapons Commerce (BXA) EAA Biological weapons Biological Weapons proliferations precursors Convention State (CDT) AECA Biological weapons agents Biological Weapons Convention Missile system proliferation Commerce (BXA) EAA Designated commodities Missile Technology and technology Control Regime State (CDT) AECA Missiles, launch facilities Missile Technology Control Regime Conventional weapons State (CDT) and DoD AECA Defense articles and None proliferation (Defence Security services Assistance Agency) "Emergencies" Commerce (BXA) Trading with the Enemy Export embargoes None Act (TWEA)/International Emergency Economic Powers Act (IEEPA) State (CDT) AECA Defense articles and None services THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES Treasury, Office of TWEA/IEEPA Transaction prohibitions None Foreign Assets Control a See text note 14 for relevant excerpts of the legislation cited. b Items that could be of significance in nuclear applications, but are not specially designed or produced for nuclear applications. c Any export of a good or technology that the exporter knows, or has reason to know, will be used in a sensitive nuclear activity. 89
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES FIGURE 6-2 National security export control process 90
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 91 FIGURE 6-3 Munitions export control process
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 92 FIGURE 6-4 Foreign policy export control process
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 93 useful distinctions between defense articles controlled under authority of the Arms Export Control Act and items controlled under the Export Administration Act. Jurisdictional disputes also arise over Defense Department authority to review exports to nonproscribed destinations for national security purposes, Defense Department authority to review cases controlled for foreign policy reasons, and Department of Energy review of dual use goods controlled for purposes other than nuclear nonproliferation. The confusion over which law and which set of agency regulations pertain to particular items has caused delay and expense for U.S. exporters. The working definitions and interpretations of various key terms should reflect overall U.S. goals with respect to specific export control programs and should be clearly understood by all agencies with implementation responsibilities. Although presidential executive orders and national security directives outlining basic export control objectives and establishing some dispute resolution mechanisms have been issued periodically, there has been too little explicit guidance on the priorities, interpretations, and jurisdiction of export control policies. 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. The system is further complicated by different licenses being introduced under the EAR for the purpose of relaxing controls at different levels of West-West trade, as well as different levels of control and license conditions for proscribed countries and proliferation concerns. For example, as of late 1990, there were three general licenses for trade with CoCom: GCT, G-CoCom, and G-Com (refer to Table 6-1). Distinctions are also made between Hungary, Poland, and Czechoslovakia and the rest of Eastern Europe and the Soviet Union in terms of goods eligible for export without full CoCom review. Although a controlled item might be eligible for export under a general or special license to a certain destination for national security purposes, the export of the same item to the same destination might require an individual validated license for a foreign policy purpose. Processing of licenses may take several months, especially for shipments to China, the Soviet Union, or Eastern Europe, and this does not include the time spent in preparing the license application or determining that a license is required. Foreign-based multinational corporations that use U.S.-origin goods and technology find compliance requirements very difficult, and most find it necessary to employ U.S. consultants or law firms to keep
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 94 track of the system. Small and medium-sized companies, both U.S. and foreign majority-owned, that lack the resources necessary to make sense of U.S. export laws often simply give up the effort to seek new international markets for U.S.- manufactured products. 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 conductâ separately or mutuallyâEAA-related investigations within the United States. At borders or ports of entry, the Commerce Department must give the Customs Service prior notice of its investigation. Outside the United States, the jurisdictional lines blur. Neither the Department of Commerce nor the Customs Service actually "investigates" overseas; rather, they coordinate with overseas law enforcement agencies to obtain evidence needed for U.S. domestic cases. Commerce enforcement agents must obtain Customs concurrence to travel abroad. According to the Commerce Department's International Trade Administration, "to ensure their effective cooperation in export control, Commerce and Customs will routinely and promptly exchange licensing and enforcement information, including advising as to the opening and closing of investigations.15 Despite this guidance, the Customs Service and BXA's Office of Export Enforcement have not been able to establish an official, working mechanism to coordinate enforcement activities. As for sanctions, the levels of sanctions for violations and the circumstances that must be established for their imposition vary from statute to statute. Sanctions have developed over the years through ad hoc legislation, and no effort has been made to assess and systemize them. A critical decision as an investigation progresses is whether to recommend criminal prosecution, civil penalties, or both. Depending on the nature of the violation, civil penalties might be a more effective deterrent than criminal prosecution and vice versa. There is, however, no agreed, interagency standard for cases that warrant criminal prosecution as opposed to cases that should be addressed through civil penalties. Moreover, consultation between Commerce and Customs on the appropriate action is limited. In the administration of civil penalties, the Commerce Department makes use of an administrative law judge and judicial review.* Although the Arms * An issue in this procedure deserving further study is that the Commerce Department, which lacks the same degree of independence as an administrative law judge, has the power to modify the decisions of an administrative law judge.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 95 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).16 The 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.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 96 that an item is taken off the MCTL does not necessarily lead to U.S. action to delete it from the CoCom or U.S. control lists. Further, the dissension and confusion surrounding the definition of ''militarily critical" for items under national security control have resulted in outdated U.S. 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. Of the 14 foreign availability assessments completed since the Omnibus Trade and Competitiveness Act was passed in 1988, 10 resulted in positive findings. Of those 10, 1 was referred to negotiations with the foreign source, 1 resulted in approved licenses, 5 resulted in decontrol, and the others are awaiting action. The average time from the initial claim to final action for those items that were decontrolled was more than seven months (see Table 6-6). The foreign availability assessment process that was established to determine the controllability of items on the Commodity Control List has proven largely ineffective. Although data from the foreign availability assessments are used in list review, the assessment process itself is costly and contentious and has rarely resulted in timely decontrol. The extensive decontrol of certain CoCom-controlled categories at the June 1990 High-Level Meeting provides an instructive case study of the policy process for list construction and review. In only a few months, CoCom agreed to the complete elimination of 30 control categories (out of 116) and to partial elimination of 13 more (favorable consideration practices were outlined for certain East European destinations). It focused revisions on three key areasâ computers, machine tools, and telecommunicationsâand called for swift development of a "core list" of critical technologies. Prior to this decontrol, a series of streamlining efforts to reduce the control list were perceived as largely ineffective. It took a foreign catalystâ communism's collapse in Eastern Europe and the resulting pressures on CoCom for loosening restrictionsâto bring about, temporarily, a workable process for decontrol. The U.S. interagency review was propelled by the need to formulate a position in time for the June 1990 CoCom meeting and, indeed, to avert a feared collapse of CoCom if certain of its members judged the resulting decontrol insufficient. The President was able to present a coherent decontrol plan to CoCom only by short-circuiting the existing process. Continued White House pressure on the participating agencies was necessary to bring about significant loosening of restrictions. Advice from the Joint Chiefs of Staff, who conducted a threat assessment prior to the decontrol, proved especially useful. Because the White House policy aimâ wide-ranging decontrolâwas made clear and constantly reiterated, the types of interagency disputes that have often blocked the process were minimized. Although the United States succeeded in presenting an acceptable plan of action to CoCom in June 1990, subsequent U.S. proposals on specific
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 97 TABLE 6-6 Results of Foreign Availability Assessments Under the Omnibus Trade and Competitiveness Act Commodity Initiated Completed Decision/Result Freon (5799C)a 9-26-88 2-23-89 Decontrol (2-28-89) 2,4-D (4707B) 10-31-88 2-23-89 Decontrol (2-28-89) 6,000-m SSS (1510A) 2-10-89 6-02-89 Negative finding (7-12-89) Prepreg equipment (1357A) 4-18-89 8-18-89 National security override (3-15-90) 50-MB disk (1565A) 7-28-89 11-28-89 Decontrol (6-29-90) Polysiliconb (1757A) 9-5-89 1-5-90 Licenses approved (6-19-90) Polysilicon (1757A) 9-12-89 1-12-90 Decontrol (8-31-90) Array processors I (1565A) 9-29-89 12-28-89 Negative finding (3-13-90) Die bonders (1355A) 9-5-89 1-5-90 Negative finding (2-7-90) Array processors II (1565A) 2-1-90 6-1-90 Decontrol (6-29-90) Polyimides (1746A) 2-28-90 6-28-90 Positive finding; no action to date D-RAMs (1564A) 3-5-90 7-5-90 Positive finding; no action to date Diamond turning (1091A) 3-20-90 7-20-90 Negative finding (8-23-90) Gallium arsenides (1757A) 5-15-90 9-15-90 Positive finding; no action to date aThe numbers in parentheses are export commodity control numbers (ECCNs). bDenied license claim. SOURCE: U.S. Department of Commerce, Bureau of Export Administration. core list entries again could undermine the solidarity of CoCom if such proposals fall far short of European and Japanese expectations for decontrol. Thus, in this key national security area, foreign nations and suppliersâ not the U.S. interagency processâare driving the U.S. export control apparatus. Although the core list process has produced relatively
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 98 substantial results, it is doubtful that the institutionalized CoCom and U.S. list review processes could work effectively in less exigent circumstances. Finally, in the proliferation area, the Zangger Committee meets regularly to update the nuclear trigger list. The Nuclear Suppliers Group, in contrast, has not met since its inception. Updates to the U.S. Nuclear Referral List are made on an ad hoc basis (a comprehensive update was completed in 1989). The annex of the Missile Technology Control Regime also is updated on an ad hoc basis. The annex itself is generic, which leaves the interpretation of actual items to be controlled up to national authorities. This type of national discretion leads to important discrepancies in national control systems, especially for dual use items. Conversely, chemicals that are considered sensitive precursors to chemical weapons are specifically identified by the Australia Group on a regular basis. Ineffective Dispute Resolution The process for dispute resolution is characterized by a lack of transparency resulting from unclear policy guidelines and complicated agency responsibilities. In considering whether to allow certain shipments, agencies disagree on levels of technology and the necessary conditions of sale. Agencies also disagree on the criteria for control or decontrol of list items and the interpretation of statutory guidelines for list review. For example, a foreign availability assessment for semiconductor wire bonders was begun in 1985, and decontrol was recommended, and approved by the President, in 1987. Despite the President's decision, negotiations with the foreign source to control the export of wire bonders were undertaken in 1988. The source country declined to cooperate based on the argument that the item was not strategically critical and was available in the Soviet Union and East Germany. 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. The number of personal computers necessary to meet Warsaw Pact military needs and thereby satisfy the "available in sufficient quantity to render U.S. controls ineffective" criterion is a matter of subjective judgment, not established fact. The other foreign availability criteria are also subject to interpretation and therefore ripe for interagency dispute. Yet, no working mechanism exists for resolving these disputes. The interagency procedure for resolving disputes on license decisions is confusing to industry and often takes too long for businesses to plan effectively. If an important dispute does reach as high as the under secretary level of review, the arguments for or against a case are frequently very technical
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 99 in nature and the officials in charge often lack the technical expertise to address the matter adequately. 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. exporters. Clearer guidelines for case referral and more definitive standards for licensing decisions are needed. Exercise of Export Control Authority Although a number of other countries maintain various types of export controls, the United States is alone in its historically frequent use of trade controls to respond to international events, beginning with the Stamp Act of 1765. Although U.S. law does not expressly state that trade is a privilege extended to citizens by the government, not a right of citizens, implementation of U.S. export control laws assumes that the universe of U.S. exports is controlled worldwide, unless otherwise stipulated. This assumption is inconsistent with foreign trade laws that operate on the basis of trade as a right, not a privilege. Thus, the willingness of foreign governments to use trade as a routine foreign policy tool is somewhat circumscribed. Both the U.S. Congress and the executive branch routinely resort to trade controls or sanctions in response to human rights abuses or other politically distasteful activities. Other countries may also restrict trade with "pariah" countries, but it is rarely their first international response. The proclivity of the United States to use trade sanctions as a ready tool of foreign policy has caused significant problems for U.S. exporters. An example of the disparity between U.S. and foreign practices is U.S. enforcement practices. A party convicted, or even suspected, of committing an export control violation may be placed on the Table of Denial Orders and embargoed from legal trade in any U.S. products or technical data. If a party is convicted of a criminal violation and serves prison time for the conviction, that party may not regain exporting or importing privileges for 10 years. In contrast, once a convicted party has served a sentence for export control violations in foreign countries, that party regains its original trading rights and may not be discriminated against on the basis of past records. Nature and Extent of Unilateral Controls One result of the bias toward trade as a privilege, rather than a right, is the unilateral nature of many aspects of U.S. control practices. Significant unilateral features of the U.S. control system include the following: reexport
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 100 controls, foreign policy controls over U.S.-owned foreign entities, written assurance requirements and other importer certifications, more stringent controls on technical data (including visits and employment of non-U.S. citizens), controls over foreign products with U.S.-origin technology, parts, or components, control of many civil products and technologies under the munitions control regime, more burdensome and complex licensing regimes, and more stringent enforcement mechanisms. In a world of diffuse economic and technological power, the widespread use of unilateral export controls is counterproductive. Although some CoCom countries practice limited or unofficial forms of reexport controls, the United States is the only country formally requiring that its permission be obtained by non-U.S. parties for the reexport of goods or technology that have come to rest in another country. In addition to items unchanged in form, non-U.S. technology may be controlled if it is commingled with U.S.-origin technology, and foreign-made goods may be controlled if they contain more than 25 percent U.S.-origin parts or components (10 percent if the destination is one of seven selected countries controlled for foreign policy reasons). U.S. rules require that written assurances be obtained from recipients of controlled dual use technical data that neither the data nor their direct product will be reexported to a controlled country without U.S. permission. In addition, goods and technical data received under license from the Department of State cannot be reexported without U.S. permission, and State does not allow for a 25 percent de minimus on the foreign incorporation of U.S. parts and components. These reexport rules are enforced through administrative, civil, and criminal penalties and by restricting or denying trade with the foreign violator. The U.S. rationale for reexport controls is that the absence of such controls allows third-party middlemen to make sales where U.S. firms are restricted and thus undercuts the purpose of the control program and disadvantages U.S. exporters. Other governments say that reexport controls cannot be effectively enforced, and most say they have no legal authority to require or enforce reexport controls. The major adverse reaction to U.S. 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. Data collected in 1986 for the Allen panel showed that compliance with U.S. reexport controls is minimal among foreign parties who are independent of U.S. firms.17 Although BXA licensing data show that more than 11,500 cases, at a value of close to $41 million, were approved for reexport in 1989, there is virtually no way to estimate the portion of total controlled reexports these figures represent (see Table 6-7). The panel's European fact-finding delegation was told by a major German industrial association that member industries are advised to comply only with
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 101 TABLE 6-7 Department of Commerce Licensing Decisions, 1989 Exports Reexports Destination Approved Denied Approved Denied By volume Free worlda 59,995 154 6,450 35 CoCom 27,313 23 2,430 3 China 3,862 101 718 4 Eastern bloc 1,709 123 1,958 66 By value (in $ millions) Free worlda 79,050 191 36,794 159 CoCom 33,895 106b 3,619 .088 China 3,170 .027 .225 .041 Eastern bloc 1,807 17 234 3 aDepartment of Commerce designation for all nonproscribed, non-CoCom countries. bMore than 99 percent of this figure represents computers SOURCE: U.S. Department of Commerce, Bureau of Export Administration. the controls on reexports of goods with 25 percent U.S.-origin parts or components, thus ignoring U.S. foreign policy reexport controls on locally manufactured goods with lesser U.S. content. In addition, there is an abundance of anecdotal evidence that, when possible, foreign manufacturers avoid U.S. sources in order to escape the encumbrance of U.S. reexport controls. Another contentious aspect of the licensing debate concerns whether the CoCom countries should practice "national discretion," that is, the export of certain controlled dual use items to proscribed destinations without first getting CoCom approval. (The licensing term for this kind of exception is an administration exception note.) The argument for national discretion is that it reduces the burden of license processing on CoCom and provides a paper trail for shipments that otherwise would not exist. Yet, because nations interpret quite differently the control threshold at which national discretion is employed, national discretion for dual use items undermines the principles of a multilateral regime. Insufficient Judicial 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. The question of whether to extend review to nonenforcement situations, such as licensing actions and the issuance of regulations, has been given new significance by the failure of the administration to implement various provisions
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 102 of the EAA.* Judicial review is no cure-all, however. Specifically, it is not the appropriate means for resolving interagency disputes on the very issues on which courts lack expertise and traditionally defer to the executive branch. Unjustifiable burdens on the resources of the Commerce Department must be avoided, and the Commerce Department must retain unfettered discretion on fundamental questions of administration. 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. The secretary of commerce appoints a technical advisory committee for any goods or technology determined by the secretary to be difficult to evaluate because of technical matters or worldwide availability. The TACs also comment on the utilization of products and technology and licensing procedures. The TACs advise and assist the Commerce and Defense Departments and any other appropriate agency in establishing and administering national security controls. They consist of representatives of industry, the Departments of Commerce, State and Defense, and the intelligence community, and others at the discretion of the secretary of commerce. The State Department has established no comparable mechanism for obtaining industry input in matters related to the International Traffic in Arms Regulations. The Commerce Department has established 10 technical advisory committees, which now include about 175 industry members, and it recently has begun to upgrade support for their participation and to integrate their input in list construction.â¡ Industry members are chosen by the Commerce Department on the basis of individual company nominations. In addition to subject matter qualifications, appointments traditionally have been subject to the nominee's receipt of a security clearance and screening by the Office of the Secretary of Commerce and the White House Personnel Office. The latter has resulted in rejection of otherwise technically qualified applicants and has added months to the appointment process. Another avenue of industry input to the dual use control list is through the structure of technical working groups, whose members are not subject to White House screening. * See Appendix H for further discussion of this issue. â¡ Appendix I discusses the technical advisory system for export controls and suggests a way to enhance the participation of the TACs.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 103 Any truly effective export control system requires close cooperation between industry and government. Exporters must be involved in determining not only the goods to be controlled but also the rationale for controls. Controls will be far more effective if industry fully understands and supports the rationale for controlling exports. In practical terms, this involves comprehensive explanation from the government on the security concerns being addressed and detailed interaction between government and industry on how best to address them. In many cases, industry experts are more qualified to identify end uses and patterns of behavior that indicate sensitive or proscribed activity than government technicians. Recently, there has been somewhat greater industry participation in list management. Technical advisory committees, for example, were given a role in the construction of the CoCom core list. However, serious problems still remain with the extent of involvement by U.S. industry, which is a major reason why legitimate economic considerations are not taken into account at the start of the policy process. The traditional policy process does not lend itself to effective and fair presentation of industry views, particularly for small and medium-sized firms that are without Washington representation. The lack of sufficient business involvement in the system is partly self- inflicted. Too few companies make the effort or devote the resources necessary to placing qualified personnel on the advisory committees. Business must take a more active part in the process, particularly in the nomination of technically qualified personnel to work on the committees. Admittedly, much of the lack of response may be due to disillusionment with the current system and the conviction of industry that the government will not respond adequately to business advice even when it is given. Unfortunately, the current system of export controls tends to cast government and industry as adversaries, rather than partners. In the process of energizing and upgrading export control regimes, it is not enough to solicit the participation of other governments. The private sector must be brought in as a full and cooperative partner. NOTES 1. Sections 3.2(c), 3.2(a), and 3.2(b), respectively, Export Administration Act. 2. Section 5(d), Export Administration Act, as amended. 3. Part 120.3, International Traffic in Arms Regulations. 4. 15 C.F.R. 768â799. 5. Section 776.14, Export Administration Regulations. 6. Section 785.4, Export Administration Regulations. 7. Section 776.16, Export Administration Regulations. 8. Sections 785.1 and 785.7, Export Administration Regulations. 9. Section 785.4, Export Administration Regulations.
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 104 10. Section 776.19, Export Administration Regulations. 11. Section 778, Export Administration Regulations. 12. Section 776.18, Export Administration Regulations. 13. Section 776.19, Export Administration Regulations. 14. The stated purpose of the various statutes is as follows: Export Administration Act, Public Law 96-72, Section 3(2): "It is the policy of the U.S. to use export controls only after full consideration of the impact on the economy of the U.S. and only to the extent necessary (a) to restrict the export of goods and technology which would make a significant contribution to the military potential of any other country or combination of countries which would prove detrimental to the national security of the U.S.; (b) to restrict the export of goods and technology where necessary to further significantly the foreign policy of the U.S. or to fulfill its declared international obligations; and (c) 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.S., the President is authorized to control the import and the export of defense articles and defense services . . . Decisions on issuing export licenses under this section . . . shall take into account . . . whether the export will contribute to an arms race, support international terrorism, increase the possibility of outbreak or escalation of conflict or prejudice the development of bilateral or multilateral arms control arrangements." Atomic Energy Act of 1954, as amended by the Nuclear Non-Proliferation Act of 1978, Public Law 95-467, Section 3201: "The Congress finds and declares that the proliferation of nuclear explosive devices or of the direct capability to manufacture or otherwise acquire such devices poses a grave threat to the security interests of the U.S. and to continued international progress toward world peace and development." Section 3202: "It is the purpose of this Section to promote the policies set forth (in Section 3201) byâ (a) establishing a more effective framework for international cooperation to . . . ensure that . . . the export by any nation of nuclear materials and technology intended for use in peaceful nuclear activities do not contribute to proliferation. (b) authorizing the U.S. to take such actions as are required to ensure that it will act reliably in meeting its commitment to supply nuclear reactors and fuel to nations which adhere to effective non- proliferation policies; (c) providing incentives to the other nations of the world to join in such international cooperative efforts and to ratify the Treaty; and (d) ensuring effective controls by the U.S. over its exports of nuclear materials and equipment and of nuclear technology." Trading with the Enemy Act of 1917, as amended by the International Emergency Economic Powers Act of 1977. H.R. 7738. The purpose of the International Emergency Economic Powers Act is to redefine the power of the President to regulate international economic transactions in times of war or national emergency and to separate war and non-war authorities. Presidential powers are narrowed and made subject to congressional review in times of "national emergency" short of war. A national emergency is defined in Title II, Section 202 as an "unusual and extraordinary threat which has its source in whole or substantial part outside the United
THE U.S. AND MULTILATERAL EXPORT CONTROL REGIMES 105 States, to the national security, foreign policy, or economy of the United States." Section 203 authorizes the President to regulate transactions in foreign exchange, banking transactions involving any interest of any foreign country or national thereof, and the importing and exporting of currency or securities, and to freeze any property in which any foreign country or national thereof has any interest. Title III, Section 301, provides authority for control over exports of non-U.S. origin goods and technology by foreign subsidiaries of U.S. concerns. Section 302 provides authority to control U.S. exports. 15. Federal Register 50, October 11, 1985, pp. 41545â41546. 16. Institute for Defense Analyses, Analysis of Militarily Critical Technologies List Implementation (Critical Technologies Implementation ) (Alexandria, Va., 1990), p. IIâ2. 17. National Academy of Sciences, National Academy of Engineering, and Institute of Medicine, Balancing the National Interest: U.S. National Security Export Controls and Global Economic Competition (Washington, D.C.: National Academy Press, 1987), p. 139.