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May 26, 2011 

Representative Berman Introduces Bill to Update U.S. Export Control System

Today, Representative Howard Berman (D-CA), the Ranking Member on the House Foreign Affairs Committee introduced what is expected to be the first of several bills to update the U.S. dual-use export control system. Such a bill is needed because the Export Administration Act of 1979 (EAA), the last major export control bill enacted by Congress, lapsed in August 2001 and the Export Administration Regulations have remained in effect as a result of successive presidents invoking the International Emergency Economic Powers Act (IEEPA).

Representative Berman's 68 page bill, entitled the Technology Security and Antiboycott Act (pdf) (no bill number assigned as of this writing), would repeal the EAA and replace the authority in that law with a new statutory scheme that reflects the numerous technological advances and global changes that have occurred since 1979.

The following are some of the key aspects of the Technology Security and Antiboycott Act:

  • Provides the President with authority to deploy controls to counteract current and future national security threats, including rogue governments, terrorist organizations, and other non-state actors that seek to attack the U.S. and its allies.
  • Modernizes the definition of "national security" to include sustaining U.S. leadership in science, manufacturing and our high-tech workforce, and requires the President to balance traditional security goals with maintaining U.S. academic and manufacturing leadership in applying controls.
  • Updates the definition of "dual-use" to include capable of being used in terrorist or cyber attacks. 
  •  Establishes a process for regular review of the Commerce Control List to ensure that new items are adequately controlled and that the level of control of items on the lists are adjusted as conditions change.
  • Requires control lists to be published in a form that facilitates compliance by small and medium sized businesses and academic institutions.
  • Retains IEEPA penalty structure of maximum criminal penalties of $1 million or 20 years in prison and maximum civil penalties of $250,000 or twice the amount that this the basis of the violation.
  • Civil penalties for export violations would be based on seriousness of the violation, culpability of the violator and violator's record of cooperation with the government.
  • Provides that penalties for export and antiboycott violations would be subject to judicial review.
  • Requires the publication of "best practices" guidelines to assist persons in developing and implementing, on a voluntary basis, effective export control programs.
  • Provides that implementation of an effective export compliance program should be mitigating factors in civil penalty cases.
  • Requires civil aircraft parts certified by the Federal Aviation Administration to be subject to dual-use controls under the Technology Security Act and not the International Traffic in Arms Regulations (ITAR).
  • Establishes the Transfer Policy Committee, a high-level interagency management group responsibility for overall administration, rule-making and oversight of export controls. 
    • Reenacts provisions authorizing the antiboycott authority and non-proliferation (missile and chemical and biological) functions of the U.S. government.
    The Technology Security and Antiboycott Act is expected to be referred to the House Foreign Affairs Committee, where Representative Berman is the senior Democrat. Representative Ileana Ros-Lehtinen (R-FL), the Chairman of the House Foreign Affairs Committee indicated in the May 12, 2011 export control hearing that she plans to introduce a bill to that would authorize a short-term extension of the lapsed Export Administration Act that would also include other provisions to "help enable Congress and the Administration to tackle together the critical changes necessary to strengthen our national security, while advancing commercial interests." The Obama Administration is also working on legislative language to implement those aspects of the export control reform reform process that requires legislation.

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