9
Elements of a New Response: The U.S. Control Regime

As described in Chapter 6, the U.S. domestic policy process for export controls is characterized by significant policymaking and structural deficiencies. Multiple and overlapping administrative agencies, statutes, and regulations confound those attempting to use the system. Inadequate definitions for munitions and dual use items further complicate application of statutes to controlled items. In addition, interagency conflicts have been exacerbated by weak procedures for prompt resolution of disputes.

Defects in the organizational and regulatory structure are compounded by a lack of consistent leadership in the formulation and execution of clear, overall policy direction. The 1990 CoCom decontrol and core list exercise demonstrated the value of exerting strong presidential leadership on the U.S. export control regime. Such skillful response to an immediate crisis must be transformed into lasting structural change, however. The administrative agencies will continue to interpret differently the rules for judging licensing cases so long as they lack clearly specified guidelines. Moreover, the already challenging task of constructing control lists is made more difficult by the lack of sufficient criteria to weigh different kinds of threat. Further, provisions for industry participation at meaningful stages of the policy formulation process are insufficient. Thus, substantial reform will be necessary to achieve the goals of an effective U.S. export control process.

POLICY PROCESS GOALS

The export control policy process should be reformed in order to achieve the following results:



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Finding Common Ground: U.S. Export Controls in a Changed Global Environment 9 Elements of a New Response: The U.S. Control Regime As described in Chapter 6, the U.S. domestic policy process for export controls is characterized by significant policymaking and structural deficiencies. Multiple and overlapping administrative agencies, statutes, and regulations confound those attempting to use the system. Inadequate definitions for munitions and dual use items further complicate application of statutes to controlled items. In addition, interagency conflicts have been exacerbated by weak procedures for prompt resolution of disputes. Defects in the organizational and regulatory structure are compounded by a lack of consistent leadership in the formulation and execution of clear, overall policy direction. The 1990 CoCom decontrol and core list exercise demonstrated the value of exerting strong presidential leadership on the U.S. export control regime. Such skillful response to an immediate crisis must be transformed into lasting structural change, however. The administrative agencies will continue to interpret differently the rules for judging licensing cases so long as they lack clearly specified guidelines. Moreover, the already challenging task of constructing control lists is made more difficult by the lack of sufficient criteria to weigh different kinds of threat. Further, provisions for industry participation at meaningful stages of the policy formulation process are insufficient. Thus, substantial reform will be necessary to achieve the goals of an effective U.S. export control process. POLICY PROCESS GOALS The export control policy process should be reformed in order to achieve the following results:

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment Policy issues are resolved in a timely manner and policy decisions are enforced by the executing agency. Views of relevant departments are heard and considered, and unresolved cases presenting significant policy issues are taken to a senior-level interagency group for prompt resolution. The system is made simpler, more open, and internally consistent so that policymakers, administrators, and U.S. and foreign business can more easily understand it and work with it. The development of export control policy is well balanced, and industry and other affected parties have appropriate opportunities for input into policy formulation, including regulatory changes and list development. Achievement of these goals would be expedited by a process in which policy formulation is handled through a mechanism separate from that of policy administration. A clearer division of functions would help dispel the current confusion in the bureaucracy between policy formulation and its implementation. Further, both processes must be restructured and strengthened. Clear policy guidance should be established through firm presidential leadership, and a more rational administrative apparatus should be constructed for execution of policy established by the President. POLICY FORMULATION A workable regulatory scheme and efficient administrative structure require strong policy direction. The executive branch must formulate an efficient and coherent policy development framework and provide an appropriate administrative structure to ensure that policy is properly executed, particularly because the absence of such guidance in the past has led to deficiencies in the policy process. Presidential Leadership The National Security Act of 1947, as amended, and subsequent legislation provide ample authority for the President to formulate and execute national security policy through the National Security Council (NSC). This includes authority to establish policy on export controls. The act states that the function of the National Security Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security.1

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment Further, the act states that it is the NSC's duty to consider policies on matters of common interest to the departments and agencies of the Government concerned with the national security, and to make recommendations to the President in connection therewith. 2 The President has authority under the act over three main areas: economic security, foreign policy, and military affairs. Export control policy, however, has not heretofore been considered a formal part of national security policy. For example, it has not been addressed to a sufficient degree in formal national security directives (NSDs) as has been the case with other areas of national security policy. Since the National Security Act of 1947 and subsequent legislation give the President authority to provide detailed instructions on key components of export control policy, an NSD should be the President's vehicle for the formulation and implementation of export control policy. Such a directive would specify the interagency mechanisms for implementing the President's policy, particularly with regard to a streamlined licensing system and a fast, effective dispute resolution process. Through the vehicle of an NSD, the President should provide guidance on the fundamental objectives for all national security export controls (including munitions, dual use, and nuclear, missile, and chemical/biological controls) and direction for achieving those aims. Policy Mechanisms A framework for national security export control decision making must include appropriate mechanisms for carrying out the policy enunciated by the President. The arrangement for export controls should be part of the same apparatus for policy implementation that an administration establishes for any important component of national security. The relevant executive branch agencies should retain a strong voice in policymaking. The basic function of the policy mechanism should be to integrate the existing policy roles of the various executive branch agencies. The hierarchical structure of what would be the four main elements of the policy formulation system for export control is as follows: A comprehensive national security directive An Export Control Policy Coordinating Committee (EC/PCC) National security export control interagency groups Working groups and technical groups The NSD should lay out formally the details of this executive struc-

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment ture, which would correspond roughly to the current administrative structure. Lines of responsibility and accountability should be clearly established among all the participating groups. These groups are briefly discussed below. EXPORT CONTROL POLICY COORDINATING COMMITTEE An Export Control Policy Coordinating Committee should be established to formulate and review policy recommendations, resolve exceptional disputes among agencies, and monitor the work of the interagency groups. The EC/PCC would be the locus for export control policy decision making within the framework of the NSD. It should comprise senior representatives of involved departments and agencies. To ensure objective evaluation of disputes reaching this level and the immediate attention of the National Security Council as necessary, the EC/PCC should be chaired by the national security advisor or the deputy advisor. The EC/PCC and the interagency groups should function as ''courts of last resort" for officials seeking resolution of matters under dispute. If necessary, important unresolved issues would be referred to the full NSC for final action, although such referrals should be extremely rare. Ultimately, strong presidential leadership is required if the export control policy system outlined above is to work effectively. NATIONAL SECURITY EXPORT CONTROL INTERAGENCY GROUPS Under National Security Decision Directive 10, authority is granted to establish interagency working groups deemed important to U.S. national security policy. Interagency working groups should be established as necessary to consider the appropriateness of export controls as a means of addressing overall U.S. national security and foreign policy objectives. Serving as the principal operating policy groups, they should advise the President on the advantages and disadvantages of the various U.S. export control programs and on the need for modification of current programs or for new programs. The interagency groups would oversee working and technical groups, resolve agency differences, and refer unresolved matters to the Policy Coordinating Committee. They would also verify that policy is uniformly applied by each group. Further, the interagency groups would ensure that technical advice from U.S. industry is included through the various advisory

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment groups working with the agencies on decisions about additions to or deletions from control lists. Because export control policymaking is an extremely complex field that demands a high degree of technical sophistication and in-depth command of the interagency apparatus, the interagency groups should be given adequate staff support. WORKING GROUPS AND TECHNICAL GROUPS Necessary working groups of the interagency groups, including technical groups, should be established. These groups should be charged with responsibility for all areas relating to export controls. The technical groups, which would include the technical working groups and the technical advisory committees, should build on the functions currently performed in list construction. They would have the responsibilities discharged in the past by the technical task groups and should have industry representatives assigned from the technical advisory committees. The technical groups should he provided with special expertise, including substantial input from U.S. industry, to handle particularly complex technical matters. The NSD should establish a lead agency to chair each working group and provide the technical groups with the requisite authority to perform their responsibilities. The lead agencies must be encouraged to be responsive to the requirements and suggestions of the technical groups. NSD Areas of Concern The NSD should include, in particular, guidance on the following critical aspects of export control. LIST CONSTRUCTION The NSD should establish the general policy and specific procedures for constructing and reviewing the control lists. The guidance regarding process methodology should cover at least the following areas: Establish interagency methodology for list construction, including criteria or standards for determining military criticality, economic costs, and other factors. Specify agencies responsible for assessing the national security importance of controlled items and clarify priorities (or burden of proof) for balancing diverse interests.

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment Specify the process for resolving disputes over list construction. (See Chapter 10 for a detailed discussion of list construction and review.) REGULATORY PROCEDURES, LICENSING, AND DISPUTE RESOLUTION The NSD should establish guidance for the development of regulatory control regimes, including establishing the targets of controls, such as destinations and end uses. The NSD should also prescribe parameters for distinguishing between routine and exceptional licensing cases and detail the decision-making process for each. The directive should identify responsibilities for review and resolution of exceptional cases. Time limits should be included to ensure expeditious decision making. Designated authorities must define the criteria for referral of licenses to interagency resolution. To eliminate the existing public confusion over the specific terms of U.S. export control policy, which is a major defect of the current system, presidential guidance should be made public to the extent feasible. Although elements of the NSD might require classification, broad policy concepts and the details of policy execution should be stated publicly. POLICY EXECUTION More efficient case processing, better procedures for dispute resolution, and greater system transparency are among the potential gains from a revised administrative process. Consolidated Administration In order to achieve a more rational and effective export control process, the U.S. domestic process should be reconfigured through consolidation of all day-to-day administrative functions in a single agency. Single agency authority for day-to-day functions will have the following advantages: Establish a more rational and consistent regulatory structure. Achieve efficiency in list administration and implementation of regulatory changes. Attain further improvement in license processing. Avoid jurisdictional disputes at the administrative level. Facilitate industry's access to information on export control requirements.

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment Increase efficiency by consolidating the electronic data processing functions of various administrative agencies. The reorganization and accompanying policy directives will give the single agency final authority to make decisions on routine licenses, to promulgate regulations, and to resolve interpretive disputes within the specific policy guidelines of the NSD. Many routine licensing decisions, for example, are of a level that can best be handled within the independent authority of a single administrative agency. Authority also should extend to administrative aspects of list management. The consolidation will entail combining regulatory regimes to achieve uniform administrative requirements with levels of control appropriate for attainment of policy objectives. At the same time, the agency's decision making should be guided by the broad policy framework developed in the traditional interagency process. The goal of the reorganization is to consolidate administration of controls based on an internally consistent set of regulations while keeping broad policymaking and final dispute resolution in the hands of the President and responsible cabinet secretaries in the National Security Council and the Export Control Policy Coordinating Committee. Responsibility for the administration of restrictions on dual use items, munitions, items controlled for nonproliferation purposes, and trade-related items under "emergency" powers should be transferred to the single agency. The goal of a more transparent licensing process should be achieved through a "one-stop shopping" mechanism, that is, a single administrative window for exporters seeking to obtain licenses. Users of the proposed system should be able to submit license applications and obtain data on regulations and control criteria from the same office. A single-window approach should alleviate what is probably the single largest cause of processing delays: exporters' failure to provide sufficient licensing information. A single-window approach will be considerably facilitated by setting up the single licensing agency. "One-stop shopping" should be established in harmony with other restructuring of the control apparatus lest it devolve into a well-intended but ineffective initiative. Administrative Alternatives The panel evaluated two basic alternatives for consolidating agency functions. The first alternative is to put administrative functions in a newly

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment created administrative structure. The second is to consolidate functions in an existing department or agency. The first alternative has certain advantages. Creation of a separate agency could tie together the disparate threads of a complex policy based on multiple, sometimes contradictory, interests. A new agency would, in theory, put an end to bureaucratic battles over turf by placing previously established agencies under one roof. The importance of issues pertaining to export controls arguably justifies a separate agency devoted to such concerns. A new agency might be expected to give added status to export control issues. A new agency would face several serious practical impediments, however. It would be dwarfed in size, budget, and influence by established organizations, particularly the Defense and State Departments. Its creation likely would encounter opposition from agencies and congressional committees defending current jurisdictional prerogatives. A new agency might simply lead to another layer of bureaucracy that would hobble instead of expedite the policy process. And it might have a self-interest in regulation that would lead to perpetuation of controls no longer justified by changing circumstances. Given the progress that has been made so far in improving both policy and process, the panel concludes that it would be better to modify the current system rather than start anew. In consolidating administrative functions, it would be sensible to select as the chief administrative agency one of the three departments—State, Defense, or Commerce—primarily involved in export controls. The State Department has an advantage in that its administrative agency has recently been reorganized, staff has been added, and facilities have been upgraded. Yet, in several ways the State Department is not an optimal setting for an administrative agency. The State Department is oriented primarily to matters of high-level policy and foreign affairs, not the detailed work of a licensing bureau. The emphasis on foreign policy also diverts attention from a focus on commercial matters that must be part of any trade administration system. The Defense Department has been intensively involved with both license review and list construction, and it has substantial technical expertise on export control in its Office of the Under Secretary for Acquisition and its Defense Technology and Security Administration. It also has considerable experience in international commerce through the foreign military sales program. Given its central mission, however, the Defense Department would not be sufficiently responsive to balancing military and commercial concerns, particularly in regard to exports of dual use items. Compared with the Departments of Defense and State, the Commerce Department does not possess the same amount of influence on, or participation in, national security affairs. In addition, the Commerce Department

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment has the mission of promoting U.S. business, a condition that potentially could bias it toward relaxation of controls. The Commerce Department's Bureau of Export Administration (BXA), however, already handles—in dollar value—the great majority of cases processed by the export control system, and it has undergone considerable administrative improvement of its own. It has an established administrative apparatus, which has achieved a reasonable degree of efficiency over the past few years. Further, the agency has dealt with a broad spectrum of products and technologies, and it has a sophisticated and reasonably comprehensive regulatory scheme. The Export Administration Act (EAA) already identifies the Commerce Department as the implementing agency for the act, which covers the broader portion of the export control spectrum. The improved policy formulation process proposed here would alleviate some of the current inevitable mixing of policy formulation and execution in an agency charged with both export regulation and promotion. In this regard, the panel has determined to its satisfaction that BXA's export administration functions are sufficiently separate from the export promotion activities of the Commerce Department. Therefore, the Commerce Department's Bureau of Export Administration should be selected as the single administrative agency for export controls. As part of the consolidation of functions, measures should be taken to lessen any remaining deficiencies at BXA, such as strengthening technical center staff at the Office of Technology and Policy Analysis and upgrading its professional grade levels. OTHER CHANGES RELATING TO PROPOSED REFORMS The enhancement of policy decision making and the administrative reforms outlined above will not address all the issues and problems of the export control system. This is partly because no bureaucratic construct is perfect, and partly because the reforms will have to be accompanied by certain legislative and other administrative changes to become operative. Changes in Agency and Legislative Authority If the single agency scheme is to work, the U.S. government will have to make the necessary changes to existing legislation and governmental structure for export control administration. Some of the proposed changes can be implemented within existing legislative mandates, but certain reforms would require that Congress amend the relevant acts. For example, ending the overlap between the Export Administration Act and the Arms Export

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment Control Act would require amendments to legislation. Harmonization of varying statutory authority will demand strong executive branch leadership and extensive cooperation on the part of Congress. Although the proposed changes would require some statutory revision and some transfer of functions among executive branch agencies, responsibilities for policy formulation would remain with the appropriate departments, subject to coordination with congressional bodies and the mechanism for interagency policy formulation. In addition, agencies with special expertise would be involved in the interagency and working groups and license reviews. Standards for Munitions and Dual Use Items The absence of clear policy direction is perhaps most evident in the definitional problems plaguing the current system. It is difficult to administer a set of dual use controls without firm guidance on the standards to be used in distinguishing dual use items from inherently military ones. Since separate laws and agencies regulate export controls, better criteria for defining the scope of the statutes are required to reduce the confusion over jurisdiction. A serious problem is the lack of an effective, balanced mechanism for resolving disputes among agencies over commodity jurisdiction, that is, the classification of an item as a dual use or munitions item. If the control scheme is to involve separate lists for munitions and dual use items, the delineation between the two lists should be clear, especially if each list is separately administered, as at present. The terms defense articles and dual use goods and technologies should be clearly differentiated if the Munitions List is to remain distinct from the Commodity Control List. If a separate Munitions List is maintained, it should contain only (1) items specially designed for a significant and uniquely military application and (2) items that do not have essentially the same performance, capacity, or function as items used for commercial purposes. Integration and Review of Control Lists Apart from improvements to the methodology for list construction and review (see Chapter 10), other enhancements to list management are recommended. A set of integrated U.S. control lists should be fashioned so that the different lists are similarly structured and formatted. Integrating the lists will lessen overlap and discrepancies among the control lists and conflicts among associated regulations. By keeping the system as simple as possible, the goal of greater transparency of the control system

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment will also be furthered. The respective structures of the U.S. and international control lists should also be harmonized. Building on progress made so far in the policy process, the United States should continue to make the appropriate shift of administrative resources from traditional East-West export controls to controls directed at proliferation concerns and the end-use verification of more narrowly targeted East-West controls, as suggested by the panel. An interagency task group should regularly review the Munitions and Commodity Control Lists to eliminate duplication and ensure coordination with the CoCom Industrial List. The U.S. dual use list should be compatible with other multilateral control arrangements. Time Limits and Dispute Resolution Deadlines for the resolution of differences among the export control agencies have been imposed in the past by Congress. For example, according to Section 10(e) of the Export Administration Act, an agency to which a Commerce Department export license application is referred must submit its recommendation within 20 days,3 thereby preventing the equivalent of an agency pocket veto. Deadlines have had some benefit in spurring decision making on case processing, jurisdictional determinations, and list review. Shorter, legislatively mandated deadlines in themselves could be ineffective, however, because if pressed for a decision, the "fast response" from the administering agency would likely be a recommendation of denial. Clear policy guidance, including guidance on timely procedures for resolving interagency disputes, should be provided to obviate most of the need for legislated deadlines. Administrative Due Process and Appropriate Judicial Review The statutory exemption (Section 13(a) of the EAA) from the application of certain provisions of the Administrative Procedure Act (APA), including the appropriate level of administrative due process and judicial review of Commerce Department actions, should be removed. The application of the administrative due process and judicial review provisions of the APA is not inconsistent with the protection of national security or foreign policy interests. Classified information or other national-security-sensitive information can be safeguarded within the framework of the APA. When required, licenses may be revoked or new

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment controls imposed without the otherwise-required opportunity for prior comment on or contest of the action. The courts, which have traditionally deferred to the executive branch on matters of policy, would afford appropriate latitude for agency discretion. Congress has already afforded a significant measure of due process to parties that are the subject of civil enforcement proceedings under the EAA, including the opportunity to be heard before an administrative law judge and to seek judicial review under standards identical to Section 706 of the APA, that is, reversal for lack of substantial evidence or for abuse of agency discretion or error of law. Removal of the Section 13(a) barrier would not significantly alter the current treatment of civil enforcement cases. Congress has expressed its "intent," in Section 13(b) of the EAA, that "to the extent practicable" regulations are to be "issued in proposed form with meaningful opportunity for public comment." This provision should be retained even if Section 13(a) is repealed, since under the APA any agency may exempt regulations from preissuance for public comment if security or foreign policy so require. The repeal of Section 13(a) would more effectively ensure public participation in the development of regulations. In addition, the repeal of Section 13(a) would more effectively ensure execution of congressional mandates. For example, a number of EAA amendments affected by the Omnibus Trade and Competitiveness Act of 1988 were not implemented within the time periods specified. The prospect of judicial intervention would ensure more timely agency responses. The repeal of Section 13(a) also would afford access to the courts for unsuccessful license applicants. The APA standard for judicial review, however, would deny relief except for absence of procedural due process and for arbitrary action. The courts could not question policy decisions, including determination of what items should be subject to export control. It is unlikely, in the panel's judgment, that these changes would unduly burden the Commerce Department in administering the EAA or lead to an excess of litigation. Such consequences have not been observed in similar programs under other statutes, including the Arms Export Control Act and the International Emergency Economic Powers Act, that are not exempt from the APA. Enforcement Issues In the area of sanctions, proposals have been made for certain agencies to take exclusive responsibility for enforcement of U.S. export controls. Opposing views over which agency should have primacy in various enforcement areas are indicative of broader problems concerning admin-

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment istrative responsibility for trade enforcement. Those problems extend well beyond the direct domain of export controls and involve a number of enforcement bodies, including the Customs Service, the Drug Enforcement Administration, and the Office of Export Enforcement. Examination by the panel indicated that more time and resources would be necessary to develop sound recommendations to resolve these issues. Accordingly, the General Accounting Office should be requested to undertake a study of this important problem. Questions the study should address include the following: What are the requirements for enforcement in the various export control laws and how do they differ for the Export Administration Act, Arms Export Control Act, Atomic Energy Act, Nuclear Non-Proliferation Act, International Emergency Economic Powers Act, and the Trading with the Enemy Act? To what extent are there problems with enforcement of the Export Administration Act? Specifically, Are organizations effectively accomplishing their assigned enforcement missions? Are enforcement resources allocated rationally? Are there mechanisms to promote coordination and cooperation in enforcement efforts? Do efficiencies result from linking administration to enforcement? What is the degree of exporter cooperation with the Commerce Department and the Customs Service? What enforcement improvements are required? Is there a more effective basis for organizing enforcement responsibilities? More specifically, an effort should be made to analyze and systemize the various criminal and civil sanctions in the U.S. export control statutes. In addition, given that a number of export control statutes lack civil enforcement provisions, consideration should be given to enactment of appropriate civil sanctions for export control violations, together with adoption of appropriate procedures for implementation of those sanctions. With regard to administration of enforcement, uniformity of administrative procedures should be part of the single administrative agency recommended by the panel. The existing Commerce Department enforcement procedures appear to be appropriate. In the absence of single agency administration, therefore, enforcement procedures similar to those of the Commerce Department should be instituted in the other affected agencies.

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment U.S. Representation at CoCom In addition to problems with the domestic process, the U.S. portion of the CoCom process is also flawed. Of particular note are the inadequacy of industry representation, insufficient dissemination of information on the control list and CoCom decisions, and the technical proficiency of the staff of the permanent U.S. Mission. Given the increasing relative importance of international economic concerns and the greater weight U.S. partners in CoCom attach to trade considerations, industry concerns should be more fully represented at CoCom discussions. As with the U.S. government domestic process, the CoCom process should be made more transparent. There is ample justification for publishing material such as the Industrial List, the CoCom schedule of list review, and, to the extent security considerations permit, commonly agreed criteria for CoCom decision making. The level of technical knowledge of the permanent U.S. mission to CoCom should be upgraded to the extent necessary. ENHANCING INDUSTRY PARTICIPATION Greater balance and effectiveness in the export control system require a greater level of industry participation in the system. A process in which defense, economic, and foreign policy concerns are all coordinated into a cohesive U.S. policy must be further encouraged. To improve the current level of industry input, the President should establish a permanent industry advisory committee on export administration. To ensure continuity from administration to administration, the committee should be required by law. The committee should have the following features: Charter—Advise the government on all forms of export controls that may be authorized by law or executive order. Responsibilities would include evaluation of and recommendation for the following: the role and value of export controls in achieving national objectives; the effectiveness and impact of current and proposed control policies, methodologies, and processes; and improved approaches to achieving national objectives through controls or alternative means. The committee also would provide oversight and appropriate coordination of specialized advisory groups, such as the technical advisory committees.

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment Membership—Industry members (representing firms affected by export controls) would be appointed by the President from nominations made by the key agencies: Commerce, Defense, State, and Energy. Policy-level officials of the four departments, the intelligence community, and the Treasury Department could be designated to serve by their agency heads. Delegates from the congressional committees responsible for export control oversight also would be desirable. Terms—Industry members would be appointed for staggered, six-year terms to ensure continuity across changes of administration. Chairperson—The chairperson would be appointed by the President from the industry members. Secretariat—The Commerce Department would provide the necessary staff and resources to support the committee's work. In addition, the following changes should be made to the technical advisory committees to enhance the breadth of their charge, level of interagency participation, and amount of technical expertise: The scope of the charge of the technical advisory committees should be broadened to include nonproliferation controls and munitions controls. The State and Defense Departments should appoint a portion of the industry members to ensure their confidence in committee expertise in defense products and technologies. The Defense Department should appoint at least one representative to each technical advisory committee to serve as a regular participant. Other agencies should appoint participants to a committee when that committee's scope is relevant to the agency's charge or when agency participation is requested by a committee. Representatives of the technical advisory committees should be assigned as regular participants in interagency or other established technical decision-making groups on export control lists and procedures. Such participation should include substantial involvement in interagency meetings, from list construction and review all the way through to the end of the CoCom meetings. Technical advisory committees should be supported with resources (provided equally by the Commerce, State, and Defense Departments) that are sufficient to provide technical staffing by the Institute for Defense Analyses and to pay the travel expenses of industry members. The activities of the technical advisory committees and working groups should be coordinated through the Institute for Defense

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Finding Common Ground: U.S. Export Controls in a Changed Global Environment Analyses to ensure the committees an adequate level of technical support. In addition to implementation of a permanent advisory committee and the upgrading of the technical advisory committees, a third step should be taken to achieve greater balance among national security, foreign policy, and economic considerations: economic security must be institutionalized in a national security framework. It was for this reason that the previous Academies' study, the Allen report, recommended that the Commerce and Treasury Departments participate in National Security Council meetings on export controls. The Department of Commerce is not a statutory member of the National Security Council. This privilege has been reserved for government officials most directly concerned with military security—the President, the vice president, and the secretaries of state and defense. The National Defense Act provides that the President may invite others to NSC deliberations, and statutes over the years have provided for specific individuals to serve as advisors at NSC meetings in particular areas of expertise. Thus, the chairman of the Joint Chiefs of Staff, the director of central intelligence, and the director of the Arms Control and Disarmament Agency have been designated by statute as advisors. Because many important national security issues will involve serious economic concerns, those federal agencies responsible for economic matters should be formally brought into the policy process for meetings in which their expertise could serve the national interest. Specifically, the secretary of commerce should be included routinely as an advisor/participant in National Security Council discussions. NOTES 1.   National Security Act of 1947, Section 101(a). 2.   National Security Act of 1947, Section 101(b)(2). 3.   Export Administration Regulations, October 1988, Section 10(e).