Export Controls: Regulatory Change Needed to Comply with Missile Technology Licensing Requirements

GAO-01-530 Published: May 31, 2001. Publicly Released: Jun 15, 2001.
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Highlights

The United States and several major trading partners created the Missile Technology Control Regime in 1987 to control the spread of missile technology. To carry out the U.S. commitment to the agreement, Congress passed the National Defense Authorization Act of Fiscal Year 1991, which amended two U.S. export control statutes: the Export Administration Act and the Arms Export Control Act. Two federal agencies, the Department of Commerce and the Department of State, are responsible for implementing the regulations for controlling missile technology exports. This report discusses whether the regulations for controlling the export of Missile Technology Control Regime items (1) are consistent with U.S. law and (2) provide a consistent U.S. policy on the control of missile technology. GAO found that Commerce's export regulations are inconsistent with an amendment to the Export Administration Act that requires an individual export license for all controlled dual-use missile equipment and technology to all countries. Commerce's regulations do not require licenses for the export of controlled missile equipment and technology to Canada. Commerce did not cite any section of this statute or its legislative history to justify the inconsistency between its regulations and the statutory requirement. GAO found that State's export regulations are consistent with the amendment to the Arms Export Control Act. The inconsistency between Commerce's regulatory exemption and the Export Administration Act, along with different interpretations by Commerce and State of congressional intent, contributes to a divided U.S. government policy toward Canada and toward missile proliferation.

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Recommendations

Matter for Congressional Consideration

Matter Status Comments
Congress may wish to instruct the Secretary of Commerce on the need to bring the Department's regulations into compliance with the law until such time as Congress has determined that dual-use Missile Technology Control Regime (MTCR) items may be exempt from licensing requirements.
Closed – Not Implemented
There has not been any legislative action to address how Commerce is controlling the export of missile technology items to Canada.

Recommendations for Executive Action

Agency Affected Recommendation Status
Department of Commerce Because Commerce's regulations are inconsistent with the amended Export Administration Act, the Secretary of Commerce should revise the Export Administration Regulations to comply with the MTCR export licensing requirements contained in the National Defense Authorization Act for Fiscal Year 1991.
Closed – Not Implemented
In May 2005, Commerce issued a proposed rule to amend the Export Administration Regulations by imposing a license requirement for exports and reexports of items controlled for missile technology reasons to Canada: Proposed Rule: Imposition of License Requirements for Exports and Reexports of Missile Technology-Controlled Items to Canada, 15 CFR Parts 738 and 742. This proposed rule has not been finalized and the Export Administration Regulations have not been revised to comply with the statutory export licensing requirements.
Department of Commerce Because Commerce's regulations are inconsistent with the amended Export Administration Act, the Secretary of Commerce should seek a statutory change from Congress to specifically permit MTCR items to be exempted from licensing requirements.
Closed – Not Implemented
No legislation to revise the statutory licensing requirements for exports of missile technology items is currently pending.
Department of Commerce If the Secretary of Commerce decides to seek a statutory change, he should revise the Export Administration Regulations to comply with the current statute until such time as a statutory change occurs.
Closed – Not Implemented
In May 2005, Commerce issued a proposed rule to amend the Export Administration Regulations by imposing a license requirement for exports and reexports of items controlled for missile technology reasons to Canada: Proposed Rule: Imposition of License Requirements for Exports and Reexports of Missile Technology-Controlled Items to Canada, 15 CFR Parts 738 and 742. This proposed rule has not been finalized and the Export Administration Regulations have not yet been revised to comply with the statutory export licensing requirements.

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