Jan

10

More Tiers Are Shed Over Answered Prayers

Posted by at 7:14 pm on January 10, 2011
Category: BIS • Export Control Proposals
Kevin Wolf
ABOVE: Kevin Wolf

Today’s edition of the Washington Tariff & Trade Letter has an article (paid subscription required) quoting Kevin Wolf at the Bureau of Industry and Security as to the impact that foreign availability will have on the classification of dual use items in the export reform process.

“To be clear, availability will not be the determining factor in any particular decision,” he said. Rather, “it will be factored in as part of the government’s ultimate decision about how to tier items.”

Even though foreign availability will be one factor in the decision as to what tier the item would classified in, Wolf stressed that the ultimate decision would not overturn existing statutory and multilateral control obligations:

The only caveat to this, again, to the extent not otherwise inconsistent with existing statutory obligations or multilateral obligations, that’s a standing rule in this entire effort. We’re not trying to undo or unwind existing multilateral obligations or statutory obligations

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Copyright © 2011 Clif Burns. All Rights Reserved.
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2 Comments:

Foreign availability is (or at least was) a factor that Sections 5 and 6 of the Export Administration Act require to be considered by the government in the imposition and/or continuation of export controls. Of course, the EAA expired long ago and while BIS and DoJ assert that it has been continued in force by executive order under IEEPA (a doubtful proposition which raises questions as to both constitutional and statutory construction) which has no foreign availability mandate, it is clear that Commerce has cherry picked the provisions of the EAA that it finds convenient to follow. Other provisions of the EAA that Commerce routinely ignore include Section 13, which requires notice and comment rulemaking for the imposition of any new export controls, a provision that should trigger the Regulatory Flexibility Act (5 USC 601 et seq) mandating determination of the regulatory impact upon and outreach to small businesses.

On the other hand, BIS asserts that the EAA as extended under Executive Order pursuant to IEEPA gives it the right to impose temporary and permanent denial orders, even though there is no comparable statutory provision in the penalty section of IEEPA (5 USC 1705) and the Administrative Procedures Act at 5 USC 558 prohibits agencies from imposing sanction unless specifically authorized by law.

Comment by Mike Deal on January 11th, 2011 @ 9:45 am

Best. Title. Ever.

Comment by Pat on January 12th, 2011 @ 7:27 pm