The Bureau of Industry and Security (BIS) grants licenses for the export of sensitive goods and technologies, balancing commercial interests against those of national security. The bureau also enforces sanctions and embargoes, works with other countries on export controls, monitors the health of the domestic defense industry, and promotes U.S. trade interests abroad. Since September 11, 2001, emphasis has been placed on restricting the export of technologies that could be used to create weapons of mass destruction. The Under Secretary for Industry and Security is Eric L. Hirschhorn.
Export control has been an element of government policy throughout U.S. history. However, it took on great significance during the Cold War, when it was deemed necessary for national security reasons and as a tool of foreign policy, to prevent sensitive goods from being sent to the Soviet bloc. Congress enacted the Export Control Act of 1949, creating a system for Cold War export control. The act was renewed repeatedly until the late 1960s, when thawing relations with the Soviet Union made some question whether export controls should be loosened. The Export Administration Act (EAA) of 1969 relaxed controls, and also delegated congressional authority to regulate foreign commerce to the executive branch, on a temporary basis. Subsequent renewals of this act in 1974, 1977, 1979, and 1985 further eased controls. In 1987, the United States Export Administration was created, transferring export licensing and export enforcement functions from the International Trade Administration to the new Export Administration. In 1988, the name was changed to the Bureau of Export Administration (BXA).
In 1989, the collapse of the Soviet Union forced a debate on the future of export controls; some pushed for further liberalization to promote U.S. exports, while others thought controls should be tailored to address security threats in the post-Cold War era. Congress was unable to agree upon changes, and in 1994, the EAA lapsed—only to be continued for six years by Executive Order No. 12924, issued by President Bill Clinton in 1994. Clinton derived the authority to do this from the International Emergency Economic Powers Act, which allows the president to declare an emergency and control exports for national security or foreign policy reasons. In 2000, Congress enacted a law reinstating the 1979 version of the EAA until August 20, 2001. That act was also allowed to lapse, and President George W. Bush continued the export controls by executive order.
In 2002, the office was renamed the Bureau of Industry and Security, during an internal reorganization to reflect a greater emphasis on homeland security. President Barack Obama reauthorized the office by Executive Order in 2009 and again in 2010.
In December 2010, the Obama administration presented for public review, a proposed reform of export controls of sensitive military and other technology, trimming what industry groups have called an antiquated Cold War set of regulations. On the advice of the President’s Export Council, Obama proposed formalizing the involvement of industry in the reform effort, and devoting more resources to help small businesses comply with the export control laws. Under this proposal, the BIS published proposed regulation that would create a new license exception that would allow exports of controlled items to countries that are members of all four multilateral export control regimes or other regime members that also are members of NATO.
Many exports that are subject to Bureau of Industry and Security (BIS) controls, including certain types of machinery, software and technical specifications, have both commercial and military applications, and are therefore dubbed “dual-use items.” Individuals or companies seeking to export these and other controlled goods must go through a licensing process that examines the items, where they’re going, who will be using them, and for what purpose. There are currently ten broad licensing categories: nuclear materials, facilities and equipment; chemicals, microorganisms and toxins; materials processing; electronics; computers; telecommunications and information security; sensors and lasers; navigation and avionics; marine; and propulsion systems, space vehicles, and related equipment.
Export prohibitions vary depending on where the goods are being sent. Countries that are currently under embargo by the United States, or have been designated supporters of terrorism, are subject to the tightest controls. The current list includes Syria, Sudan, Iran, North Korea, and Cuba. The bureau also maintains a list of denied persons, entities and organizations that are prohibited from receiving exports because of alleged involvement in terrorism and drug trafficking, the proliferation of weapons of mass destruction, or because the bureau couldn’t complete an adequate background check.
The agency’s Export Administration office performs a variety of functions that promote U.S. trade competitiveness. The Office of Nonproliferation and Treaty Compliance administers regulations related to nuclear suppliers, missile technology and chemical and biological controls. It also runs the U.S. unilateral foreign policy export controls. The Office of Strategic Industry and Economic Security implements programs that support the U.S. defense industrial base, including ensuring that defense industries meet current national security requirements. The Office of Exporter Services counsels exporters, runs seminars, and drafts changes to export regulations. It also administers licensing and compliance actions. The Office of Technology Evaluation analyzes the impact of export controls on U.S. competitiveness and the capabilities of the U.S. industrial base to support national defense. The Office of National Security and Technology Transfer Controls is responsible for national security export and re-export controls. It implements multilateral export controls for national security reasons to comply with the Wassenaar Arrangement to control the spread of dual-use goods and related technologies.
The Office of Export Enforcement is the bureau’s enforcement arm and has and includes criminal investigators, analysts and researchers, and compliance enforcement staff.
From the Web Site of the Bureau of Industry and Security
DPAS (defense priorities program)
EMCP (export tool)
SNAP-R (online submissions)
STELA (export tool)
Recipients of Bureau of Industry and Security (BIS) aid include the U.S. military, the domestic defense industry, and congressional districts where defense-industry companies are major employers. From 2000-2010, the BIS gave more than $15.7 million to contractors, according to a query of USAspending.gov.
The top contracting recipients, and their percentage of all contract include:
1. Commonwealth Trading Partners $5,622,427 (36%)
2. Technology Concepts & Design Inc. $2,674,408 (17%)
3. General Dynamics Corporation $1,545,562 (10%)
4. Harlan Lee and Associates $875,020 (6%)
5. Herman Miller $513,671 (3%)
New BIS Program Criticized as Threat to National Security
In 2007, the Bureau of Industry and Security (BIS) announced that five Chinese companies had been granted newly created Validated End-User (VEU) status, essentially designating them trusted customers and allowing them to purchase certain products from the United States without a license to facilitate and increase bilateral high-technology trade. The BIS said the move would aid American exporters and create jobs, and ease the burden of reviewing license applications for certain items that pose no risk to illicit use. Later that year, the VEU program grew to include companies in India. Typically, U.S. products are controlled by the BIS for their usefulness to overseas military programs or to prevent the creation of weapons of mass destruction. The advocacy group the Wisconsin Project on Nuclear Arms Control has argued that the companies chosen are not above suspicion, and found that two of the five are closely linked to China’s military production complex, and have been affiliated with companies that have been sanctioned by the State Department for proliferation to Iran or Syria. The Wisconsin Project said that the VEU program should be suspended. The Federation of American Scientists also issued a report that said that U.S. arms exporters are increasingly bundling their sales with “offsets,” or side agreements where foreign buyers receive bonus technology or manufacturing capabilities. These offsets raise serious concerns in assisting foreign arms industries, and expose inadequate export-licensing enforcement by the BIS, the group said. Meanwhile, the business community fought a proposal that would have tightened export controls on technological products in early 2007. In 2009, the BIS renewed its VEU programs in China and India.
BIS Revives VEU Export Program for China and India (Akin Gump Strauss Hauer & Feld LLP)
In China We Trust? Lowering U.S. Controls on Militarily Useful Exports to China (Wisconsin Project on Nuclear Arms Control) (pdf)
Offsets: The Industrial, Employment and Security Costs of Arms Exports (Arms Sales Monitoring Project, Federation of American Scientists)
In December 2010, the Obama administration presented for public review a proposed reform of export controls of sensitive military and other technology, trimming what industry groups have called an antiquated Cold War set of regulations. On the advice of the President’s Export Council, President Barack Obama proposed formalizing the involvement of industry in the reform effort, and devoting more resources to help small businesses comply with the export control laws. Under this proposal, the Bureau of Industry and Security (BIS) would create a new license exception that would allow exports of controlled items to countries that are members of all four multilateral export control regimes or other regime members that also are members of NATO. The proposed exception would impose new requirements to provide safeguards against possible unauthorized re-exports, including notification, destination control statement, and consignee statement requirements. In 2008, the Bush administration also unveiled new directives on export controls that would reduce delays and inefficiencies that would prevent the need for the State Department to relax export controls. The Bush administration had also pushed for an overhaul of the Export Administration Act, which was never passed. In 2001, Sen. Mike Enzi (R-Wyoming), introduced the Export Administration Act of 2001, which would have delegated Congress the constitutional authority to regulate foreign commerce to the president. Rep. Benjamin Gilman (R-New York), introduced a related bill, HR. 2581, in the House, but neither passed.
Obama poised to loosen rules on export of technology (by Howard Schneider, Washington Post)
Streamlining and Strengthening Export Controls (BIS report on EAA overhaul)
Export Controls Debate
Much debate swirls around Bureau of Industry and Security (BIS) export controls. Many in the business community support fewer controls to boost sales, while others advocate greater controls out of concern for national security. Those in support of fewer controls believe that such requirements are detrimental to the U.S. economy due to the loss of competitiveness, market share, and jobs. Those in support of such controls say that such regulations can thwart proliferation of arms, and the growth of terrorism. These competing viewpoints as manifested in debate over foreign availability and the control of technology, the efficacy of multilateral control regimes, the licensing process and organization of the export control system, and the economic effects of U.S. export controls.
The Export Administration Act: Evolution, Provisions and Debate (by Ian F. Fergusson, Congressional Research Service) (pdf)
Export Administration Act of 1979 Reauthorization (by Ian F. Fergusson, Robert D. Shuey, Craig Elwell and Jeanne Grimmett, Congressional Research Service) (pdf)
Mario Mancuso, 2007-2009
David H. McCormick, 2005-2006
Kenneth I. Juster, 2001-2005
The agency responsible for ensuring that technology that can be used to build weapons of mass destruction does not fall into the wrong hands has a new leader, following a confirmation delay of more than six months. Eric L. Hirschhorn, whom President Obama nominated on September 11, 2009, received a recess appointment from the President on March 29, 2010. Hirschhorn’s appointment had been held up by Arizona Senator John Kyl, who was demanding answers to certain questions regarding the administration’s export control review process. The responsibilities of the Bureau of Industry and Security (BIS), an agency in the Department of Commerce, include granting or denying licenses for the export of sensitive goods and technologies, enforcing sanctions and embargoes, and promoting U.S. trade interests abroad.
Professional Profile (Martindale-Hubbell)
The Bureau of Industry and Security is headed by Mario Mancuso, undersecretary of commerce for industry and security. Mancuso was born in New York and grew up in Howard Beach, Queens, where his parents ran a pizza parlor. He graduated magna cum laude from Harvard University. He then received a law degree from New York University School of Law, before moving on to the private sector, where he worked for a decade as an international corporate lawyer and business executive.