Export Control Challenges Associated with Securing the Homeland (2012) / Chapter Skim
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3 The Interagency Process for Export Controls
3 The Interagency Process for Export Controls
Pages 33-46
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From page 33... ...
Because of the important domestic elements of this defense, this was not a job for the traditional elements of the national security establishment―the Defense Department and the State Department―whose domestic reach is limited by law and long-standing practice. Yet it would be necessary to establish a centralized national security entity whose mandate could span from local first responders to global networks.
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From page 34... ...
3 Before the Homeland Security Act of 2002, the Goldwater-Nichols Department of Defense Reorganization Act of 1986, which revised the command structure of the U.S. military, was considered to be the most sweeping change in the National Security Establishment since the National Security Act of 1947.
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From page 35... ...
Export controls have an extraordinarily important but not readily visible effect on the nation's economy and security, as documented in the NRC study Beyond "Fortress America": National Security Controls on Science and Technology in a Globalized World. The export control system is based on licenses that constitute a positive review and authorization of the export of defense articles and services (including technical data and other forms of technology)
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From page 36... ...
, the Defense Department, the State Department, and the Energy Department play a role in the review of applications submitted to the Commerce Department. The executive order establishes time frames for these other agencies to review license applications, and a process for license denials to be appealed.
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From page 37... ...
In addition, these licensing requirements apply to ITAR-controlled technical data released to foreign nationals whether they reside within or outside the United States. Such technical data are subject to essentially the same restrictive licensing requirements, which mandate approval for exports and re-exports.16 The Defense Department does not issue export licenses, but it plays a critical role in the export control system via the Defense Technology Security Administration (DTSA)
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From page 38... ...
Only the State Department has the authority to issue a commodity jurisdiction determination. The Commerce Department issues determinations of how an EAR-controlled product is classified on the Commerce Control List (CCL)
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From page 39... ...
shall participate whenever compliance, enforcement, and specific commodity jurisdiction issues relating to technologies of homeland security concerns, as well as other issues as determined by the Secretary of State, are addressed.26 The interagency process for commodity jurisdictions includes three steps:27 23 The State Department's ISN bureau is the formal U.S. government representative in multilateral export control organizations such as the Wassenaar Arrangement.
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From page 40... ...
So strong is the ITAR taint that some foreign companies have adopted explicit policies to design out all U.S.-origin ITAR-controlled content and to ensure that their products are ITAR-free.29 Under the current system, there is insufficient recognition of DHS's fundamental security mission as a significant factor to be weighed in licensing decisions when DHS seeks to discuss technical details or to share equipment overseas for research and development purposes. In addition, DHS does not have the ability to require an advance commodity jurisdiction determination or advisory opinion.
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From page 41... ...
homeland security interest. CURRENT EXPORT CONTROL REFORM INITIATIVE The January 2009 National Research Council report Beyond "Fortress America": National Security Controls on Science and Technology in a Globalized World concluded that "the export controls and visa regulations that were crafted to meet conditions the United States faced over five decades ago now quietly undermine our national security and our national economic well-being.
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From page 42... ...
Consequently, DHS is unable to fulfill part of its national security mission, because preventing harmful goods or people from getting into the United States requires the export of U.S. technologies and re-export of technologies from the United States that are proscribed by export controls as implemented by the other national security agencies.
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From page 43... ...
Provide DHS with Limited ITAR License Exemptions ITAR process can take many months, particularly if the item involved is the subject of a commodity jurisdiction dispute. Under these circumstances, the State Department should consider an exemption or set of exemptions to the ITAR for certain narrowly drawn circumstances where homeland security needs cannot be met through the licensing process.37 Any proposal must include appropriate terms and conditions to ensure that all national security risks are appropriately addressed.
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From page 44... ...
homeland security and could address current problems in sharing ITAR-controlled technical data in international cooperative research and development. This authority would be comparable to the types of exemptions that are currently allowed under the ITAR.38 Put DHS on an Equal Footing in Interagency Processes for Export Controls When its Interests are Affected DHS should have a vote on each interagency committee for export control licensing and policymaking on any matter related to the international collaboration or international deployment of items for counterterrorism reasons.
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From page 45... ...
citizens against possible terrorist attacks. However, without a formal commodity jurisdiction determination or advisory opinion at the outset of the project, DHS and its contractors cannot know with confidence whether the State and Defense departments will seek to impose ITAR controls.
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