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1 1 (January 14, 2021)

handle is hein.crs/govebov0001 and id is 1 raw text is: Congressional Research Service Inforring the legislative debate since 1914 Export Controls: Key Challenges Updated January 14, 2021 Overview Congress has authorized the President to control the export of various items for national security, foreign policy, and economic reasons. Separate programs and statutes exist for controlling different types of exports, including nuclear materials and technology, defense articles and services, and dual-use items and technology-items that have both civilian and military uses. Under each program, U.S. government review and licenses of various types are required before export. The Departments of Commerce, State, and Energy administer these programs, in cooperation with input from other relevant agencies. At the same time, Congress also legislates country-specific sanctions that restrict aid, trade, and other transactions to address U.S. policy concerns about weapons proliferation, regional stability, and human rights, some of which are administered by the Department of the Treasury. Export Control Reform Act (ECRA) Export controls have become part of the debate over U.S. technological leadership and attempts by other nations to obtain critical U.S. technology legally or illegally. Congress passed the Export Control Act of 2018 (ECRA) (Subtitle B, Part 1, P.L. 115-232) as part of a wider effort to revise U.S. trade and investment policy that also included passage of the Foreign Investment Risk Review Modernization Act (FIRRMA) (Title XVII of the same act). ECRA replaces most of the expired Export Administration Act of 1979 and provides a permanent statutory basis for controlling the export of dual-use goods and certain military parts and components. ECRA requires the President to control the export, reexport, and in-country transfer of items subject to the jurisdiction of the United States, whether by United States persons or by foreign persons. The ECRA requires the Secretary of Commerce to establish and maintain a list of controlled items, foreign persons, and end-uses determined to be a threat to U.S. national security and foreign policy. The legislation also calls on Commerce to require export licenses; prohibit unauthorized exports, reexports, and in-country transfers of controlled items; and monitor shipments and other means of transfer. ECRA largely maintains the current system as codified under the Export Administration Regulations (EAR) (15 C.F.R. 730 et seq.), which had been maintained under the International Emergency Economic Powers Act (P.L. 95- 223) for nearly a quarter-century. Under Commerce, the Bureau of Industry and Security (BIS) continues to administer the dual-use export control system and the EAR, which contains the licensing policy for dual-use items and certain military parts and components. The regulations control items for reasons of national security, foreign policy, or supply shortages. National security controls are based on a common multilateral control list, known as the Wassenaar Arrangement (WA). Foreign policy controls may be unilateral or multilateral in nature. The EAR unilaterally control items for antiterrorism, regional stability, sanctions, or crime control purposes. The EAR also comprises lists of sanctioned, denied, or unverified parties, subject to a license policy of denial. It also sets out licensing procedures and civil and criminal penalties for violations. While nearly all exports are subject to the EAR, the Commerce Control List (CCL) establishes controls on specific items either on a multilateral or unilateral basis. Sanctioned countries or entities are subject to a policy of denial for all products, whether on the CCL or not. Table 1 lists the types of items on the CCL. Table I. Commerce Control List Categories 0 - Nuclear Materials, Facilities & Equipment (and Misc. items). I - Materials, Chemicals, Microorganisms, Toxins. 2 - Materials Processing. 3 - Electronic Design, Development, and Production. 4 - Computers. 5.1 - Telecommunications. 5.2 - Information Security. 6 - Sensors and Lasers. 7 - Navigation and Avionics. 8 - Marine. 9 - Aerospace and Propulsion. Source: Export Administration Regulations, Part 774. Issues for Congress With the passage of ECRA, some Members of Congress have expressed interest in expanding and strengthening the application of export controls, including controls over emerging, surveillance and repression technologies; deemed exports; and exports to Hong Kong. Emerging and Foundational Technology Perhaps the most significant change in ECRA requires the President to establish an interagency process-led by Commerce, including Defense, State, Energy, and other agencies-to identify emerging and foundational technologies. Commerce then is to establish a licensing policy for those items. ECRA stipulated that at a minimum, countries subject to general U.S. embargoes, or a U.S. arms embargo-including the People's Republic of China (PRC, or China)-would require a license for export of such technology. Currently, BIS is determining this policy by seeking industry and national security stakeholder input on defining emerging technology and the criteria to determine igross.gov

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