Effects of Foreign Policy-Based Export Controls

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Request for comments on foreign policy-based export controls.

SUMMARY:

The Bureau of Industry and Security is reviewing the foreign policy-based export controls in the Export Administration Regulations to determine whether they should be modified, rescinded, or extended. To help make these determinations, BIS is seeking public comments on how existing foreign policy-based export controls have affected exporters and the general public.

DATES:

Comments must be received by November 29, 2002.

ADDRESSES:

Written comments (three copies) should be sent to Sheila Quarterman, Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044. Comments may also be e-mailed to Brian Nilsson, Office of Strategic Trade and Foreign Policy Controls, at BNilsson@bis.doc.gov.

FOR FURTHER INFORMATION CONTACT:

Joan Roberts, Director, Foreign Policy Controls Division, Office of Strategic Trade and Foreign Policy Controls, Bureau of Industry and Security; Telephone: (202) 482-5400. Copies of the current Annual Foreign Policy Report to the Congress are available at www.bxa.doc.gov/press/2002/ForeignPolicyReport02/Default.htm.

Copies may also be requested by calling the Office of Strategic Trade and Foreign Policy Controls.

SUPPLEMENTARY INFORMATION:

The current foreign policy-based export controls maintained by the Bureau of Industry and Security (BIS) are set forth in the Export Administration Regulations (EAR), parts 742 (Commerce Control List Based Controls), 744 (End-User and End-Use Based Controls), and 746 (Embargoes and Special Country Controls). These controls apply to: high performance computers (§ 742.12); significant items (SI): hot section technology for the development, production, or overhaul of commercial aircraft engines, components, and systems (§ 742.14); encryption items (§ 742.15 and § 744.9); crime control and detection commodities (§ 742.7); specially designed implements of torture (§ 742.11); regional stability commodities and equipment (§ 742.6); equipment and related technical data used in the design, development, production, or use of missiles (§ 742.5 and § 744.3); chemical precursors and biological agents, associated equipment, technical data, and software related to the production of chemical and biological agents (§ 742.2 and § 744.4); activities of U.S. persons in transactions related to missile technology or chemical or biological weapons proliferation in named countries (§ 744.6); nuclear propulsion (§ 744.5); aircraft and vessels (§ 744.7); embargoed countries (part 746); countries designated as supporters of acts of international terrorism (§§ 742.8, 742.9, 742.10, 742.19, 746.2, 746.3, and 746.7); and, Libya (§§ 744.8 and 746.4). Attention is also given in this context to the controls on nuclear-related commodities and technology (§§ 742.3 and 744.2), which are, in part, implemented under section 309(c) of the Nuclear Non Proliferation Act.

Under the provisions of section 6 of the Export Administration Act of 1979, as amended (EAA), export controls maintained for foreign policy purposes require annual extension. Section 6 of the EAA requires a report to Congress when foreign policy-based export controls are extended. Although the EAA expired on August 20, 2001, the President invoked the International Emergency Economic Powers Act and continued in effect the EAR, and, to the extent permitted by law, the provisions of the EAA, in Executive Order of August 17, 2001 (66 FR 44025, August 22, 2001), as extended by the President's Notice of August 14, 2002 (67 FR 53721, August 16, 2002). In January 2002, the Secretary of Commerce, on the recommendation of the Secretary of State, extended for one year all foreign policy-based export controls then in effect. The Department of Commerce, insofar as appropriate, is following the provisions of Section 6 of the EAA in reviewing foreign policy-based export controls, requesting public comments on such controls, and submitting an annual report to Congress.

To assure maximum public participation in the review process, comments are solicited on the extension or revision of the existing foreign policy-based export controls for another year. Among the criteria considered in determining whether to continue or revise U.S. foreign policy-based export controls are the following:

1. The likelihood that such export controls will achieve the intended foreign policy purpose, in light of other factors, including the availability from other countries of the goods or technology proposed for such controls;

2. Whether the foreign policy purpose of such controls can be achieved through negotiations or other alternative means;

3. The compatibility of the export controls with the foreign policy objectives of the U.S. and with overall U.S. policy toward the country subject to the controls;

4. Whether reaction of other countries to the extension of such export controls by the U.S. is not likely to render the controls ineffective in achieving the intended foreign policy purpose or be counterproductive to U.S. foreign policy interests;

5. The comparative benefits to U.S. foreign policy objectives versus the effect of the export controls on the export performance of the United States, the competitive position of the United States in the international economy, and the international reputation of the United States as a supplier of goods and technology; and

6. The ability of the United States to enforce the export controls effectively.

BIS is particularly interested in the experience of individual exporters in complying with nonproliferation export controls, with emphasis on economic impact and specific instances of business lost to foreign competitors. BIS is interested in industry information relating to the following:

1. Information on the effect of foreign policy-based export controls on sales of U.S. products to third countries (i.e., those countries not subject to sanctions), including the views of foreign purchasers or prospective customers regarding U.S. foreign policy controls.

2. Information on export controls maintained by U.S. trade partners (i.e., to what extent do they have similar controls on goods and technology on a worldwide basis or to specific destinations).

3. Information on licensing policies or practices by foreign trade partners of the United States which are similar to U.S. foreign policy export controls, including export license application review criteria, use of export license conditions, and requirements for pre- and post-shipment verifications (preferably supported by examples of approvals, denials and foreign regulations).

4. Suggestions for revisions to foreign policy-based export controls (in the event there are differences) that would bring them more into line with multilateral practice.

5. Comments or suggestions as to actions that would make multilateral export controls more effective.

6. Information that illustrates the effect of foreign policy controls on the trade or acquisitions by intended targets of the controls.

7. Data or other information as to the effect of foreign policy-based export controls on overall trade, either for individual firms or for individual industrial sectors.

8. Suggestions as to how to measure the effect of foreign policy-based export controls on U.S. trade.

9. Information on the use of foreign policy-based export controls on targeted countries, entities, or individuals.

BIS is also interested in general comments relating to the extension or revision of existing U.S. foreign policy-based export controls.

Parties submitting comments are asked to be as specific as possible. In the interest of accuracy and completeness, BIS requires written comments. Oral comments must be followed by written memoranda. All written comments received before the close of the comment period will be considered by BIS in reviewing the foreign policy-based export controls and in developing the annual report to Congress.

All written comments and information submitted in response to this notice will be a matter of public record and, therefore, will be available for public inspection and copying. The BIS does not maintain an on-site facility for the public to inspect public records. All public records are posted on the BIS’ Web site which can be found at www.bis.doc.gov (click on the FOIA Reading Room link under the section of Public Information and Events). Copies of the public record may also be obtained by submitting a written request to the Bureau of Industry and Security, Office of Administration, U.S. Department of Commerce, Room 6883, 1401 Constitution Avenue, NW, Washington, DC 20230.