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1 1 (March 22, 2019)

handle is hein.crs/govyfw0001 and id is 1 raw text is: Export Controls: New Challenges 0 March 22, 2019 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 for controlling different types of exports exist for 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, licenses of various types are required before export. The Departments of Commerce, State, and Energy administer these programs. 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. Export Control Act of 2018 (ECA) 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 (ECA) (Subtitle B, Part 1, P.L. 115-232) as part of a wider effort to revise U.S. investment policy through passage of the Foreign Investment Risk Review Modernization Act (FIRRMA) (Title XVII of the same act). The ECA 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. The ECA 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 ECA also 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 called 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. The ECA 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 short supply. National security controls are based on a common multilateral control list, known as the Wassenaar Arrangement (WA); however, the manner in which those controls are applied, and to which countries, is based on U.S. policy. 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 the ECA, some Members of Congress have expressed interest in other aspects of export controls, including controls over emerging, surveillance, and repression technologies; deemed exports; and Hong Kong. Emerging and Foundational Technology Perhaps the most significant change in the ECA 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. The ECA stipulated that at a minimum, exports to countries subject to an embargo, or arms embargo, including China, would require a license for export of such technology. Currently, BIS is determining this policy through the rule- making process. BIS announced a Notice of Proposed Rulemaking for controls on emerging technology in October 2018 and received comments in January 2019. BIS sought industry input on defining emerging technology; criteria for determining whether specific technologies https:I/crsreports.conc -- -q

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