Hearing on Reauthorization of the Export Administration Act:
Government Agency Views


The Honorable John Barker
Deputy Assistant Secretary for Nonproliferation Controls
Department of State


10:00 a.m., Wednesday, June 23, 1999

Mr. Chairman, Members of the Committee,

Thank you for the opportunity to provide the views of the Department of State on this Committee's Draft of a new Export Administration Act ("EAA"). We welcome the Congress' interest in revising and updating the existing EAA. We stand ready to work with your Committee to develop legislation that carefully balances our goals of protecting U.S. national security and foreign policy interests while supporting U.S. economic leadership and assuring the security of the U.S. and its friends and allies.

Any revision to the EAA should ensure that we retain strong curbs to combat the proliferation of weapons of mass destruction, their means of delivery, the accumulation of destabilizing advanced conventional weapons, as well as controls on items useful for terrorists and criminals.

We appreciate the effort that this Committee has devoted to drafting a new EAA, and look forward to working with the Committee to develop this further. Our initial review of the bill reveals that there are some aspects of the bill --- such as higher penalties for violations --- that we can support without reservation. However, in its current form, the draft EAA has provisions about which we have serious concerns and which, if not addressed, will mean the Administration cannot support the bill. These can be broken down into the following broad categories:

Provisions that inadvertently weaken existing multilateral regimes and hamper our ability to encourage other countries to adopt stringent export controls;

Provisions that unduly constrain the ability of the Executive Branch to pursue U.S. nonproliferation objectives;

Provisions that unduly restrict our ability to implement foreign policy controls, such as crime controls, as well as the need to clarify the application of terrorism controls; and

Other provisions including those relating to sanctions on foreign persons and procedural matters.

I will touch briefly on these concerns. We have a number of additional concerns that we look forward to discussing in more detail with your staff.

To provide a context for our approach, let me first review the changes in the international security environment since the enactment of the last EAA.

Changes in the International Security Environment

The international security environment has undergone tremendous change over the past few years. The threats and opportunities that the United States faces today differ markedly from those that were present in 1979, when the EAA was enacted.

COCOM

In the past, the United States and our allies clearly focused on export controls aimed at the Warsaw Pact countries, as well as other communist countries. These countries posed a serious and clearly defined threat to the United States and its friends and allies. Through mechanisms such as COCOM (the Coordinating Committee for Multilateral Export Controls), we undertook to deny them access to weapons, dual-use items, and related technologies. Along with our allies, we agreed upon procedures for controlling exports to these destinations, including allowing for any nation to veto a specific export.

The end of the Cold War, the disintegration of the Soviet Union, moves toward democracy and market-based economies in the former Warsaw Pact, deep cuts in the strategic arsenals of both sides, and the goal of assisting economic and political reform in Eastern Europe, Russia and the other newly independent states ---rather than retarding their economic development --- all led our allies to the view that the COCOM arrangement had outlived its strategic rationale and could not be sustained. The U.S. eventually joined this view when it became clear that our trading partners no longer would agree to follow the procedures outlined in the COCOM arrangement. In the waning days of COCOM, the U.S. sought to preserve the controls for as long as possible, and pushed to establish a new worldwide arrangement to cover conventional arms and related technologies. It was only through U.S. leadership that we were able to stem the flow of arms and sensitive technologies to places such as Iran, Iraq, North Korea and Libya.

Former COCOM targets are now friends, partners, active participants in multilateral nonproliferation regimes, and even NATO allies. These changes in the external environment have made broad international engagement and economic security important components of our national security strategy.

COCOM served over the years as a useful body for like-minded countries to expand cooperation among themselves in various ways --- elaboration of control lists, and setting common licensing standards --- patterns of Western cooperation we wished to preserve and which we considered extremely valuable in addressing new dangers to international peace and security through coordinated action with friends and allies.

Our allies agree that post-Cold War challenges of regional instability and states whose behavior threatens international security demand a different type of coordinated approach than export vetoes wielded by any member of the technology producers' club. Indeed, our allies no longer agree that a COCOM-style veto arrangement is appropriate or desirable.

While there are strong advantages in a veto-type arrangement, we would never be able to impose one unilaterally. Our allies simply would not agree to it. Additionally, a veto-style arrangement could actually harm U.S. exporters by increasing dramatically license processing times by requiring coordination with as many as 33 countries, ceding to those outside the regimes the ability to respond in a more timely manner. It is also important to recognize that in many fields, the U.S. is the leader technologically; we do not believe that it will be advantageous to delegate to other countries whose industries are not as advanced as the U.S. the right to determine which sales can and cannot be made.

Focus on Behavior

Recognizing that the spread of weapons of mass destruction and sophisticated conventional arms is the most important security threat in the post-Cold War world, the role of the multilateral nonproliferation regimes has now shifted to focus on the behavior of programs of proliferation concern and the entities that supply and procure for them, rather than targeting particular recipient countries.

Our export control system for the post-Cold War world responds to these new security threats. We have emphasized broadening international adherence to our non-proliferation and export control goals. Especially since 1991, significant strides have been made in strengthening the contributions of export controls to nuclear nonproliferation. Moreover, memberships in both the Zangger Committee and the Nuclear Suppliers Group together now include all of the significant nuclear supplier states and almost all relevant suppliers are members of the other regimes. Increasingly, countries that had been contributing to the proliferation problem --- such as Argentina, Brazil and South Africa -- are becoming part of the solution.

With the backing of Congress, we have been able to assist former Warsaw Pact countries with weak border controls and weaker legislation to bolster their resources and to resist commercial incentives to trade in sensitive dual-use items, arms, and components of WMD. Our overall approach has been to:

Reduce the demand for dangerous weapons and technologies through support for international non-proliferation norms and through strategies to reduce regional instability;

Pursue a multilateral approach to achieving our nonproliferation goals through the Missile Technology Control Regime (MTCR), the Australia Group (AG), and the Nuclear Suppliers Group (NSG);

Implement and further strengthen the Wassenaar Arrangement (WA), and use the WA to promote responsible transfers of arms, sensitive dual-use goods, and related technology, and require transparency in such transfers;

Work with key suppliers, transshipment centers, and intermediaries that are not members of the nonproliferation regimes to adopt export policies and practices compatible with international standards, thereby increasing the number of countries, as described in the draft EAA, "whose policies and activities are consistent with the objectives" of the regimes; and

Retain the ability to impose unilateral controls in those limited and extreme circumstances that may require them.

We also continue the effort to reduce demand for dangerous weapons through regional diplomacy -- as in North Korea, the Middle East, and South Asia -- to respond to the underlying sources of insecurity and instability.

Multilateral Controls

We strongly agree with the Committee that the more that export controls are multilateral, the better. But making the controls multilateral also requires the U.S. to take into account the views of its regime partners, none of which have the same global view and global responsibilities as does the U.S. The Committee's draft will inadvertently make it considerably more difficult to accomplish our multilateral objectives.

Targeting

Most of our partners are unwilling to establish lists of target countries for political reasons. In any case, there are practical reasons --- such as the possibility of diversion through other countries -- that such lists have little utility. The Committee's approach would severely hamper our ability to enhance export controls multilaterally, and develop more fully the nonproliferation regimes by requiring us to change the multilateral regimes' focus on nonproliferation behavior to targeting individual countries. Moreover, it is difficult to identify exactly who is an adversary or a "potential adversary," as the bill requires. Surely, one of the best ways to make a "potential adversary," or convert one into an "adversary" is to label the country as such.

Interactions with Other Governments

As drafted, the bill has several requirements regarding our interactions with other governments. I would like to say a word on behalf of many of my foreign counterparts, who oversee their countries' participation in, or observance of, anywhere between one and all four of the nonproliferation and Wassenaar regime lists.

In many of the foreign and emerging markets for high technology, government officials have to travel to meet their requirements for license-related checks. Many such governments must also staff out U.S. requests for government-to-government assurances. We cannot in good faith state that anything less than 30 days is sufficient time for foreign governments to complete paperwork and resource allocation required by the U.S. export process. Anything less just will mean that the licenses will be denied or returned without action. No U.S. exporter gains from this approach.

Interactions with Multilateral Regimes

We want our nonproliferation and arms control regimes to have the support of the Committee and Congress as a whole. The United States Government must maintain high nonproliferation standards in order to exercise world leadership in effective export controls. But we are concerned that the draft bill could be read not to extend to non-treaty arrangements like the regimes, and might not give us the latitude to develop further the regimes' ability to address real-world proliferation problems.

National Security Controls

Tier Structure

Many of our foreign interlocutors will not categorize destinations officially because they want the flexibility of ruling out sensitive exports to particular suspicious end-users, while being able to make legitimate sales to other customers in that country. A formal tiering structure could lead to a lowest-common-denominator approach that would harm honest trade by ensuring that if there was one problem end-user in a country, no other end user in the country, no matter how upstanding, could receive similar technology.

Detailed tiering could even run afoul of multilateral regimes' provisions for case-by-case review of export license applications. We believe that the current system as embodied in the interagency agreed lists published by the Department of Commerce is sufficient to accomplish the objective the Committee seeks.

Foreign Availability

We are concerned that the foreign availability section could force us to undermine multilateral chemical weapons, missile and other controls. We also question whether the draft bill's provisions on the matter of re-exports and interpartner trade would allow us to comply with the regimes we have championed. Indeed, it would dramatically undercut the arguments that we have been making to other governments regarding the importance of reexport controls on U.S.-origin goods and technology.

Finally, we support proper Congressional oversight of our role in enhancing multilateral export control arrangements, but there does not need to be an approval and authorization per se of the foreign relations role of the executive branch regarding participation in existing or new regimes. Moreover, outlining rigid negotiating objectives, and telegraphing them to other governments, will ensure that we will never fulfill those objectives, or will pay too high a price within the regimes to achieve them. Requiring identical negotiating instructions for all of the regimes, each of which have different members and purposes, will also hamper our ability to use the regimes to accomplish our multilateral objectives.

Foreign Policy Controls

We commend the drafters for their attention to potential immediate requirements for imposition of possible new export controls, especially foreign policy controls, and we urge all concerned with the issue to build into an EAA the same sort of contingency planning for diplomacy and unforseeable contingencies that the draft contains for military contingencies.

We need to clarify how the terrorism controls will be handled under the new legislation, as these controls are extremely important. As you know, our antiterrorism controls extend to much lower levels of technology than items controlled under multilateral regimes. However, the United States is a major producer of dual-use sensitive items, and we believe our export restraints (as well as our public diplomacy) have a deterrent effect on the terrorism-related decisions of state sponsors of terrorism.

The Department maintains a strong interest in items that have been subject to regional stability or crime-related controls, as these controls give us additional means to meet critical foreign policy objectives with respect to particular countries and cases. For example, Kevlar helmets may not raise many eyebrows as an export commodity, but if they are destined to a police force in a totalitarian state with a history of violent suppression of human rights, the transaction begs for governmental review.

Ensuring Executive Branch Flexibility to Respond to New Challenges

A new Export Administration Act should allow for similar flexibility in other areas. As it is currently written, there are a number of provisions in the Act which unduly constrain and inappropriately micromanage export control processes within the Executive Branch.

Examples of this include Sections 601 and 602 of the Act, which set forth detailed license processing and dispute resolution procedures which would be more properly set forth --- and more easily modified if circumstances dictate -- in an Executive Order, as is currently the case with E.O. 12981. Another example is Section 302, which establishes detailed criteria for determining whether an item qualifies for mass market or foreign availability status. Finally, Section 201(d) restricts the President's ability to delegate authority under the Act to appropriate government officials. This provision detracts from the objective of having applications reviewed as expeditiously as possible, at the appropriate level.

Sanctions

Section 804 addresses sanctions on foreign persons for multilateral export control regime violations. The Administration fully supports the objective of this provision, to the extent that it is an effort to streamline the ever-changing web of statutorily mandated nonproliferation sanctions to define sanctionable activity in ways that accord with international nonproliferation treaties and regimes, as long as the recasting does not detract from the strength of existing nonproliferation sanctions laws.

Nevertheless, in our view, existing statutory nonproliferation sanctions laws (enacted pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, the Iran-Iraq Arms Non-Proliferation Act of 1992 and 1996 amendments thereto, the Nuclear Proliferation Prevention Act of 1994, the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991, and the National Defense Authorization Act for FY 1991), are more than sufficient to provide statutory mechanisms to further our nonproliferation goals and objectives.

The new provision, as currently drafted, would be unworkable, have unintended negative effects (e.g. requiring sanctions for transfers from entities under the jurisdiction of nonproliferation regime members but not for transfers from entities in other countries) and would merely serve to add another burdensome layer that could inadvertently harm U.S. economic interests without furthering nonproliferation goals and objectives.

Judicial Review

A final area of concern for the Department of State is the broad scope of judicial review of agency actions and regulations. We believe that it will be important to clarify the scope and limits of judicial review so that national security and foreign policy decisions would not be subject to second guessing by the courts. Congress has the means to hold the executive branch accountable for its export control decisions. We do not want the combination of the detailed criteria set forth for making licensing decisions coupled with judicial review provisions to bring the export control system to a halt and squander taxpayer resources through excessive litigation.

Conclusion



I commend the Committee for its thorough review of this extremely complex subject. Export controls not only have an effect on the health of the American economy - they have a global impact in that they are in many ways the cornerstone of our nonproliferation and arms control efforts. As we move further into an era in which the lines between military and civilian goods grow increasingly blurred, it is important that our export controls balance the need of American corporations to compete overseas with the need to protect present and emerging national security interests.

The Department of State welcomes the opportunity to work with the Committee on this complex, but essential, task.



Home | Menu | Links | Info | Chairman's Page