Combating Proliferation of Weapons of Mass Destruction

Department of CommerceThe Department of Commerce manages and enforces export controls on dual-usetechnology, including goods and technology that have a direct application in the designdevelopment, production, or use of weapons of mass destruction and their means ofdelivery. The current organization of Commerce to implement these controls dates to1985, when Congress—out of concern for the inherent conflict between the tradepromotion activities of Commerce and the administration of export controls—removedexport controls from the International Trade Administration and created the Bureau ofExport Administration (BXA).The original statutory basis for these dual-use controls was established in the ExportAdministration Act (EAA), though since 1994—the last time the EAA lapsed—the controlshave been implemented pursuant to Presidential emergency authority. Many U.S. controlshave been established pursuant to our role as party to the Nuclear Non-Proliferation Treatyand the Chemical Weapons Convention and our membership in the Nuclear Supplier’sGroup, Australia Group, the Missile Technology Control Regime, and the WassenaarArrangements. Under the “catch-all” authority established under Presidential authoritythrough the Enhanced Proliferation Control Initiative, BXA controls all U.S. dual-use goodsand technologies if destined for an end-user engaged in the development of WMD projectsor the proliferation of WMD projects to other nations.A New EAA with Enhanced PenaltiesBXA establishes and maintains the Commerce Control List, which identifies specificcommodities requiring export licenses for export to specified destinations. BXA receives,reviews and decides export license applications for items on the Commerce Control List.In fiscal year 1998, BXA received about 11,000 export license applications. The NationalDefense Authorization Act of 1998 imposed a new ten-day notification prior to the exportof high performance computers to Tier 3 destinations which resulted in about a 10 percentincrease in applications received in the first year.Effective administration of export controls is enhanced by clear legislative authorityreflecting clear export control policy. As noted in Chapter 4, we do not now have a clearconsensus on export control policy. We also do not have clear legislative authority, sinceCongress and the Administration have failed for a decade to enact a comprehensiveupdate of the Export Administration Act that reflects the post-CoCom (CoordinatingCommittee on Strategic Trade) world. Year after year, the United States has implementedits export control system pursuant to emergency Presidential authority, rather than aregular statute—the Export Administration Act. We have undertaken an extensive effort toassist emerging nations in the establishment of export control regimes and a fundamentalfirst step in these efforts is to convince these nations to establish a legal framework for their72