Beyond 'Fortress America' National Security Controls on Science and Technology in a Globalized World (2009) / Chapter Skim
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III. Recommendations
III. Recommendations
Pages 59-80
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From page 59... ...
C. Establish as a new administrative entity a coordinating center for export controls, with responsibilities for coordinating all interfaces with persons or entities seeking export licenses and expediting agency processes with respect to the granting or denial of export licenses. D. Establish an independent export license appeals panel to hear and decide disputes about whether export licenses are required, whether particular decisions to grant or deny licenses were made properly, and whether sunset requirements have been carried out properly.
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From page 60... ...
Restructuring the export control process does not involve abandoning all export controls. Rather, the committee recommends that two policy changes and two structural changes be made in order to retain See United States Export Controls by William A
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From page 61... ...
Recognize the interdependence of national security and economic competitiveness through a principle-based system. Our current circumstances require clear articulation of the principles that underlie our export control decisions.
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From page 62... ...
Given the inefficiencies associated with restricting openness and engagement, such restrictions can be justified only when they can be implemented effectively and when their security benefits specifically outweigh the harm they will necessarily cause with respect to other values and objectives. Therefore, restrictions on an unclassified technology should be implemented only when: • The United States alone, or the United States and cooperating allies, possess technology that leads not only to identifiable military advantage, but to an advantage that is likely to persist for a significant period of time (i.e., the time needed to field a system based on that technology)
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From page 63... ...
Therefore, transfer of technologies and substances needed for public health should not be restricted to legitimate recipients such as public health or research organizations. When the licensing agency applies principles to decisions about export controls, the focus will stay on why items should or should not continue to be controlled rather than on adding to otherwise static lists of controlled items.
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From page 64... ...
. The Coordinating Center for Export Controls The decision-making authority on export control licenses rests with the Department of Commerce and the Department of State.
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From page 65... ...
A new administrative entity, the Coordinating Center for Export Controls, would be established. This small coordinating entity would be responsible for: • Receiving all applications for export licenses; • Determining whether the Department of Commerce or the Department of State should handle the license application and dispatch the application to the appropriate place for decision; • Maintaining timetables for decision making on license applications so that applications do not languish; • Receiving decisions on applications from the designated agencies and distributing these decisions to applicants; • Receiving appeals of licensing decisions and petitions for review of sunset decisions, and delivering these to the appellate panel (see description below)
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From page 66... ...
The new Coordinating C enter for Export Controls will serve as a single entry point for all licensing requests. It would then determine the appropriate agency to handle the licensing request, and would pass it on accordingly.
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From page 67... ...
The best organizational home for the Coordinating Center would be within the National Security Council (NSC) structure and with the Coordinating Center's director reporting directly to the National Security Adviser.
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From page 68... ...
• Second, if the agency fails to remove an item or category of items from the control list under the sunset requirement, or does not act at all within the one-year time period for review of each item on the list, an affected party could appeal either to reverse the agency's determination, or to require the agency to act in a timely way to make the necessary determination. The committee recommends that an independent export license appeals panel be appointed by the President or the National Security
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From page 69... ...
Second, judges understand the inherent advantage of a coherent body of decisions that are consistent and based on principle to the maximum extent possible. The new export control regime recommended by the committee is based on principles that are readily applied in practical decision-making with respect to export controls.
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From page 70... ...
Special chambers that have been cleared by security agencies are available when classified national security topics must be explored. Fifth, judges are truly neutral with respect to the kinds of disputes to be resolved within the export control system, and as such are a better option than the available alternatives such as panels of subject matter experts, government officials, or others who bring specific viewpoints to the table.
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From page 71... ...
However, judges are accustomed to acting within time limits, particularly in the criminal context where due process requirements dictate a speedy trial, so timely action is unlikely to be a problem. The President's Executive Order would provide that the panel's decision would be final, except for provision for an appeal by any party to the President through the NSC within 15 days when extraordinary issues of national security or economic competitiveness were at stake.
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From page 72... ...
This is the same general procedure that judges follow in ordinary cases when materials relevant to a case are sealed to protect minors, for privacy reasons, or for national security concerns. The committee recommends that the Coordinating Center and the Appeals Panel be put into operation quickly and efficiently so that the necessary changes in the current export control system can get under way without delay.
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From page 73... ...
B. Create an economic competitiveness exemption that eliminates export controls on dual-use technologies where they, or their functional equivalents, are available without restriction in open markets outside the United States. The Fundamental Research Exemption The President should reaffirm, in its current form, the Fundamental Research Exemption set out in National Security Decision Directive 189.
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From page 74... ...
The Economic Competitiveness Exemption The committee recommends that a second overarching principle should be incorporated into the export control system by presidential directive. With the development of global markets and very significant scientific and technological centers in foreign countries, the United States can no longer realistically control dual-use items that are, or soon will be, legally available in open markets overseas.
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From page 75... ...
So long as legitimate and defensible ground rules are established in advance, and the recipient of the federal funds knows that export controls may be imposed, then the choice to accept those controls is freely made. Third, this exemption incorporates a voluntary corollary to the Fundamental Research Exemption to cover situations in which a protocol recommending constraints has been developed by responsible professional bodies. One example of this kind of voluntary system is For example, the National Science Advisory Board for Biosecurity proposes that the following criterion be used to describe dual use research of concern: "Research that, based on current under standing, can be reasonably anticipated to provide knowledge, products, or technologies that could be directly misapplied by others to pose a threat to public health and safety, agricultural crops and other plants, animals, the environment, or materiel." Proposed Framework for the Oversight of Dual Use Life Sciences Research: Strategies for Minimizing the Potential Misuse of Research Information.
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From page 76... ...
Fifth, this exemption recognizes that the Department of State must continue to have the option to deny exports for foreign policy reasons to countries whose policies and behavior are considered inimical to the interests of the United States and its citizens and private corporations, as well as to private entities or individuals known to have dealings with hostile states or with terrorist organizations. The Department of State has long had the ability to impose foreign policy export controls, and This refers to the 1975 Asilomar Conference on recombinant DNA research that led to " specified laboratory practices for constructing and handling recombinant DNA (rDNA)
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From page 77... ...
national security for their justification. The Classification System Both the existing Fundamental Research Exemption and the proposed Economic Competitiveness Exemption recognize the primacy of the classification system.
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From page 78... ...
It is important to both the national security and to our country's economic prosperity to maintain the flow of human talent into the United States. Streamlining the Visa Process The committee recommends the President's Executive Order require that a non-immigrant visa applicant who is a graduate student, researcher, or professional in any field of science or technology, and whose application is supported by a qualified university, scientific body, or corporation receive a determination on the visa application within
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From page 79... ...
Provision of Automatic Extensions The committee recommends the President's Executive Order provide a one-year automatic visa extension to international students to remain in the United States to seek employment or acceptance into further advanced study on receipt of advanced degrees in science, technology, engineering, mathematics, or other fields of national need at qualified U.S. institutions.14 If these students are offered jobs by U.S.based employers and pass security screening measures, they should be provided automatic work permits and expedited residence status.
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From page 80... ...
Skills-Based Preferential Processing for Visas The committee recommends that the President's Executive Order institute a new skills-based, preferential processing with respect to visa applications. The visa applications of scientists and engineers should be given priority.
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