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Jun 25, 2019 | 10:58 GMT

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The Genesis of the Export Control Reform Initiative

The Japan registered Meishan Bridge container ship sits in dock at the Global Container Terminal in Jersey City, New Jersey on July 14, 2018 as seen from Bayonne, New Jersey.
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Scott Peel has a Masters of International Affairs, National Security and Diplomacy from the Bush School of Government and Public Service at Texas A&M University. He is the author of the second in a three-part series on U.S. export controls. In this column, he discusses the genesis of the effort to overhaul the U.S. export control regulations.

As can be understood from the first post in this series, the U.S. export control system is inherently complex. This complexity has often invited criticism from industry, government officials, and legal experts. Aerospace and high-tech industries for years were heavily impacted by what were often perceived as burdensome licensing regulations. This made it difficult for those industries to export regulated items to major defense and economic partners of the United States. 

The export control system has been criticized for enabling competing jurisdictions between various licensing and enforcement agencies, overregulating benign goods and under-regulating new technologies with emerging national security implications, discouraging U.S. businesses from attempting to export goods to foreign customers, and adversely impacting armed forces interoperability with key defense partners.1 These systemic challenges led Robert Gates, who served as Secretary of Defense from 2006 to 2011, to propose a major overhaul of the export control system. This was called the Export Control Reform Initiative (ECRI). This reform effort employed a four-pronged approach that came to be known as the "four singles":

  1. A single export licensing agency
  2. A single enforcement agency
  3. A single IT system
  4. A single list of controlled items

    The export control system has been criticized for enabling competing jurisdictions between various licensing and enforcement agencies, overregulating benign goods and under-regulating new technologies with emerging national security implications, discouraging U.S. businesses from attempting to export goods to foreign customers, and adversely impacting armed forces interoperability with key defense partners.

    Secretary Gates described the bureaucratic organization of the export control system as "a byzantine amalgam of authorities, roles, and missions scattered around different parts of the federal government."2 This apt description sheds some light onto the desire to consolidate licensing decision-making under one roof, where expertise can be shared between officials with various viewpoints covering Commerce, State, Defense, and the Intelligence Community.

    Consolidating the license review process was intended to prevent contradictory decisions that exporters would occasionally receive from the Departments of Commerce and State. These contradictions have occasionally led to exporters seeking permission from the least-restrictive agency as a means of circumventing controls.3 Coordinating enforcement of export control violations under one agency was also intended to address jurisdictional overlap and differences in mindsets between various law enforcement agencies.

    Export control cases have been notoriously difficult to prosecute for the Department of Justice, often because of the complexity of the system, and distributing enforcement efforts between the FBI, DHS-Immigrations and Customs Enforcement, DHS-Customs and Border Protection, and the Department of Commerce-Bureau of Industry and Security Office of Export Enforcement only complicated an already difficult task.4 The proposed integrated IT system would support these consolidation efforts by allowing licensing and enforcement efforts to more efficiently share information, and provide a public-facing interface to streamline the application process for exporters.

    References

    In this article, Scott Peel cited several references. They are included below:

    [1] Secretary of Defense Robert M. Gates, speech before the Business Executives for National Security, April 20, 2010, https://archive.defense.gov/Speeches/Speech.aspx?SpeechID=1453.

    [2] Ibid.

    [3] Sievert, Ronald. “Urgent Message to Congress – Nuclear Triggers to Libya, Missile Guidance to China, Air Defense to Iraq, Arms Supplier to the World: Has the Time Finally Arrive to Overhaul the U.S. Export Control Regime? – The Case for Immediate Reform of Our Outdate, Ineffective, and Self-Defeating Export Control System.” Texas International Law Journal. Vol 37, no. 1. (2002): pg. 96.

    [4] Ibid, 99-100.

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