https://crsreports.congress.gov
Updated January 14, 2021
Export Controls: Key Challenges
Overview
Congress has authorized the President to control the export
of various items for national security, foreign policy, and
economic reasons. Separate programs and statutes exist for
controlling different types of exports, including nuclear
materials and technology, defense articles and services, and
dual-use items and technology—items that have both
civilian and military uses. Under each program, U.S.
government review and licenses of various types are
required before export. The Departments of Commerce,
State, and Energy administer these programs, in
cooperation with input from other relevant agencies. At the
same time, Congress also legislates country-specific
sanctions that restrict aid, trade, and other transactions to
address U.S. policy concerns about weapons proliferation,
regional stability, and human rights, some of which are
administered by the Treasury Department.
Export Control Reform Act (ECRA)
Export controls have become part of the debate over U.S.
technological leadership and attempts by other nations to
obtain critical U.S. technology legally or illegally. Congress
passed the Export Control Act of 2018 (ECRA) (Subtitle B,
Part 1, P.L. 115-232) as part of a wider effort to revise U.S.
trade and investment policy that also included passage of
the Foreign Investment Risk Review Modernization Act
(FIRRMA) (Title XVII of the same act).
ECRA replaces most of the expired Export Administration
Act of 1979 and provides a permanent statutory basis for
controlling the export of dual-use goods and certain military
parts and components. ECRA requires the President to
control “the export, reexport, and in-country transfer of
items subject to the jurisdiction of the United States,
whether by United States persons or by foreign persons.”
The ECRA requires the Secretary of Commerce to
“establish and maintain a list” of controlled items, foreign
persons, and end-uses determined to be a threat to U.S.
national security and foreign policy. The legislation also
calls on Commerce to require export licenses; “prohibit
unauthorized exports, reexports, and in-country transfers of
controlled items”; and “monitor shipments and other means
of transfer.”
ECRA largely maintains the current system as codified
under the Export Administration Regulations (EAR) (15
C.F.R. 730 et seq.), which had been maintained under the
International Emergency Economic Powers Act (P.L. 95-
223) for nearly a quarter-century. Under Commerce, the
Bureau of Industry and Security (BIS) continues to
administer the dual-use export control system and the EAR,
which contains the licensing policy for dual-use items and
certain military parts and components. The regulations
control items for reasons of national security, foreign
policy, or supply shortages. National security controls are
based on a common multilateral control list, known as the
Wassenaar Arrangement (WA). Foreign policy controls
may be unilateral or multilateral in nature. The EAR
unilaterally control items for antiterrorism, regional
stability, sanctions, or crime control purposes.
The EAR also comprises lists of sanctioned, denied, or
unverified parties, subject to a license policy of denial. It
also sets out licensing procedures and civil and criminal
penalties for violations. While nearly all exports are subject
to the EAR, the Commerce Control List (CCL) establishes
controls on specific items either on a multilateral or
unilateral basis. Sanctioned countries or entities are subject
to a policy of denial for all products, whether on the CCL or
not. Table 1 lists the types of items on the CCL.
Table 1. Commerce Control List Categories
Source: Export Administration Regulations, Part 774.
Issues for Congress
With the passage of ECRA, some Members of Congress
have expressed interest in expanding and strengthening the
application of export controls, including controls over
emerging, surveillance and repression technologies; deemed
exports; and exports to Hong Kong.
Emerging and Foundational Technology
Perhaps the most significant change in ECRA requires the
President to establish an interagency process—led by
Commerce, including Defense, State, Energy, and other
agencies—to identify emerging and foundational
technologies. Commerce then is to establish a licensing
policy for those items. ECRA stipulated that at a minimum,
countries subject to general U.S. embargoes, or a U.S. arms
embargo—including the People’s Republic of China (PRC,
or China)—would require a license for export of such
technology. Currently, BIS is determining this policy by
seeking industry and national security stakeholder input on
defining emerging technology and the criteria to determine
