Balancing the National Interest U.S. National Security Export Controls and Global Economic Competition (1987) / Chapter Skim
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4. The Dimensions of National Security Export Controls
4. The Dimensions of National Security Export Controls
Pages 70-102
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From page 70... ...
The Arms Export Control Act of 1976~ requires government approval for the import and export of military weaponry and services. The Export Administration Act (EAA)
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From page 71... ...
controls. In addition the United States has bilateral agreements or arrangements with a number of non-CoCom nations that provide for varying degrees of cooperation on national security export controls.
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Although shortages still played an important role in justifying the continuation of export controls, the 1949 debates included for the first time explicit references to the behavior of the Soviet Union in Eastern Europe and reminders that uncontrolled exports to Japan before the war were "subsequently used against our own people."6 When the export control question came to a vote, Congress elected to perpetuate the extraordinary wartime powers extended to the executive branch and to maintain the strict export control regime that had evolved during the war. The new authority, the Export Control Act of 1949, codified the export control procedures that were then being practiced by the executive branch under the terms of the 1940 act (and its subsequent extensions)
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To prevent such technology from reaching the hands of potential adversaries, it became necessary to establish a mechanism to coordinate allied export control policies. That mechanism, which was created in 1949, was the Coordinating Committee on Multilateral Export Controls, or CoCom.
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Detente and the Export Administration Act of 1969 When export control legislation again came up for renewal in 1969, the mood of Congress and of the nation was far different from what it had been at the time of the previous reauthorizations. Detente was the *
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The act included language advocating expanded trade with the Soviet Union and Eastern Europe, recognized the economic cost of excessive controls, and required the executive branch to provide Congress with explicit justification for the continued control of products and technical data available to potential enemies from suppliers outside the United States. Believing, however, that improved Soviet attitudes on other issues should be a quid pro quo for improved trade relations, President Nixon blocked a number of efforts made by the Department of Commerce to reduce the number of items controlled for export to the Soviet bloc.
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76 ¢ og Z ~ ~ ~ c: m O c' ~ .
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And unlike the Commerce Department's Export Administration Regulations (see below) , there are no general licenses or "bulk" validated licenses covering multiple transactions.
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exports and over reexports of U.S.-origin commodities from foreign countries. The extensive, complex instrument that provides the framework for this control is the Export Administration Regulations REARM, which Export Administration publishes and updates frequently.
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84-851. Of particular importance with regard to national security export controls are country groups W (Hungary and Poland)
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In 1986 Export Administration proposed to establish general license G-CEU (certified end user) ,~3 which would authorize exports of most products that ordinarily require validated licenses to precertified foreign end users located in CoCom member nations.
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85 ~ I >a ~ it ~ ~ E ~ ~ ~ o ~ ~ ~ I Q ~ ~ ~ 1 ~u' o 3 C)
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FIGURE 4-4 Export control flowchart.
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Controls on Technical Data The regulations that govern exports of technical data are similar but not identical to those for exports of products. Separate EAR control procedures govern the export of technical data.
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89 on 1 \ / is 1 1 zip u, 1 in Z ~ 0 ~ C AL, I A tn 1 ~1 o ,..
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Before using the GTDR license for data related to products subject to CoCom control and certain other sensitive data categories, the exporter must receive written assurance from the foreign recipient of the data that the recipient will not reexport the data-and in many cases the direct products of the data to proscribed destinations without the approval of the U.S. government.
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One of these is specifically available to PTO when the Department of Defense determines that unclassified technical data in a patent application should be subject to export controls.~7 This order permits disclosure of the data for business purposes to U.S. nationals within the United States and authorizes the filing of foreign applications in Canada, Australia, and most of Europebut not in Japan or in any newly industrializing or developing nation where there are no applicable patent secrecy provisions.
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Second, the department may suspend or revoke a company's privilege to participate in all types of export transactionsthose carried out under general licenses as well as those covered by validated licenses. In invoking this type of sanction, the department may suspend or revoke a company's or an individual's existing export licenses, it may deny future license applications, and it may prohibit export transactions that would be covered by a general license.
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ADMINISTRATION OF U.S. CONTROLS The spectrum of administrative, investigatory, and enforcement activities related to export controls involves a broad array of departments and agencies within the executive branch.
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10) Reexports from a COCOM country to the People's Republic of China that meet the requirements set forth in Advisory Notes for the People's Republic of China in the Commodity Control List (Supplement No.
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During both the first and second Reagan administrations, the National Security Council (NSC) evolved and modified a structure for export control policy and decision making.
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administers uniform multilateral national security export controls on munitions, products and technologies related to nuclear energy, and dual use products and technologies. Items in each of these categories are placed on control lists maintained by CoCom if there is unanimous consent among the member nations for control.
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From page 98... ...
This method of operation reflects the fact that, although there is strong support among CoCom members for a system of common national security export controls, there is considerable disagreement about the scope of items subject to control and the degree to which control is necessary and practical. For example, Canada, the United Kingdom, France, West Germany, and Japan have for years actively advocated major reductions in the scope of coverage.
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This policy, which was adopted after the Soviet invasion of Afghanistan, does not apply to other CoCom-proscribed destinations that is, nations in Eastern Europe. THE CONTROL SYSTEMS OF OTHER WESTERN NATIONS The panel reviewed in detail the export control systems of five CoCom countries that maintain control lists substantially parallel to the CoCom list: Canada, France, Japan, the United Kingdom, and West Germany.
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The panel also reviewed in detail the export controls of one nonCoCom nation in Europe and one non-CoCom nation in the Far EastAustria and South Korea, respectively. As a neutral nation, Austria approaches export controls from a different perspective than the CoCom countries.
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20. Membership of the Senior Interagency Group on Transfer of Strategic Technology includes representatives from the Departments of Commerce, Energy, Justice, State, and Treasury, the Arms Control and Disarmament Agency, the Central Intelligence Agency, the Federal Bureau of Investigation, the Joint Chiefs of Staff, the National Aeronautics and Space Administration, the National Security Agency, the National Science Foundation, the National Security Council, the Office of Management and Budget, the Office of the Secretary of Defense, the Office of Science and Technology Policy, the Office of the Vice President, the U.S.
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