Ian
F. Fergusson
Specialist in International Trade and Finance
Paul K. Kerr
Analyst in Nonproliferation
Congress
may consider reforms of the U.S. export control system. The balance between
national security and export competitiveness has made the subject of
export controls controversial for decades. Through the Export
Administration Act (EAA), the Arms Export Control Act (AECA), the
International Emergency Economic Powers Act (IEEPA), and other authorities, the
United States restricts the export of defense items or munitions;
so-called “dual-use” goods and technology—items with both civilian and
military applications; certain nuclear materials and technology; and items
that would assist in the proliferation of nuclear, chemical, and biological weapons
or the missile technology used to deliver them. U.S. export controls are also
used to restrict exports to certain countries on which the United States
imposes economic sanctions. At present, the EAA has expired and dual-use
controls are maintained under IEEPA authorities.
The U.S. export control system is diffused among several different licensing
and enforcement agencies. Exports of dual-use goods and technologies are
licensed by the Department of Commerce, munitions are licensed by the
Department of State, and restrictions on exports based on U.S. sanctions
are administered by the U.S. Treasury. Enforcement of export controls is conducted
by these agencies as well as by units of the Department of Homeland Security
(DHS) and the Department of Justice (DOJ).
Aspects of the U.S. export control system have long been criticized by
exporters, nonproliferation advocates, and other stakeholders as being too
rigorous, insufficiently rigorous, cumbersome, obsolete, inefficient, or
any combination of these descriptions. In August 2009, the Obama
Administration launched a comprehensive review of the U.S. export control
system. In April 2010, Defense Secretary Robert M. Gates proposed an
outline of a new system based on four singularities:
-
a single export control licensing agency for both dual-use and munitions
exports,
-
a unified control list,
-
a single enforcement coordination agency, and
-
a single integrated information technology (IT) system.
The creation of a single control list has been the Administration’s focus to
date. Interim steps have also been taken to create a single IT system and
to establish an export enforcement coordination center. No specific
proposals have been made concerning the single licensing agency.
In contrast to the Administration’s approach, legislation has been introduced
to reauthorize or rewrite the EAA in the 112th Congress. The Export
Administration Renewal Act of 2011 (H.R. 2122, Ros-Lehtinen) would renew
the currently expired Export Administration Act through 2015, update its
penalty and enforcement provisions, and provide stricter foreign policy
controls on countries designated as state sponsors of terrorism. A
separate title would amend the Arms Export Control Act to permit generic
parts and components for defense articles to be controlled differently
than sensitive defense articles on the U.S. Munitions List. By contrast, the
Technology Security Act of 2011 (H.R. 2004, Berman) would rewrite the
dual-use export control statute by giving the President the authority to
control exports for national security and foreign policy reasons and to
create the mechanisms for doing so. Each bill would, if passed, have
implications for the President’s reform efforts. In addition, the National
Defense Authorization Act for FY2013 passed the House of Representatives
on May 18, 2012, with provisions to permit the President to determine the
export control jurisdiction of commercial communications satellites and with notification
requirements on the transfer of certain items from munitions to dual-use
controls.
In considering the future of the U.S. export control system, Congress may weigh
the merits of a unified export control system—the end result of the
President’s proposal—or the continuation of the present bifurcated system
by reauthorizing the present EAA or writing new legislation. In doing so,
Congress may debate the record of the present dual-use system maintained by emergency
authority, the aims and effectiveness of the present non-proliferation control
regimes, the maintenance of the defense industrial base, and the delicate
balance between the maintenance of economic competitiveness and the
preservation of national security.
Date of Report: October 18, 2012
Number of Pages: 36
Order Number: R41916
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