History:  U.S. Export Control Laws and Regulations

In the first half of the 20th century, war or the imminent threat of war, led to the Trading with the Enemy Act of 1917 and the Neutrality Act of 1935.

Export controls have been an element of U.S. policy since the earliest days of the republic.

In 1940, Congress increased presidential power over the export of militarily significant goods and technology with the passage of Public Law 703, "An Act to Expedite and Strengthen the National Defense."

In each of these instances the rationale for control was the necessity of not giving aid and comfort to the nation's enemies.

The end of World War II ushered in a new era in which export control policy would become an extensive peacetime undertaking. The start of the cold war led to major refocusing of export control policy on the Soviet-Bloc countries.

Enactment of the Export Control Act of 1949 was a formal recognition of the new security threat and of the need for an extensive peacetime export control system.

The 1949 Act identified three possible reasons for imposing export controls.

• Short Supply Controls were to be used to prevent the export of scarce goods that would have a negative impact on U.S. industry and national economic performance.
• Foreign Policy Controls were to be used by the President to promote the foreign policy of the United States. The broad issues of regional stability, human rights, anti-terrorism, missile technology, and chemical and biological warfare have come to be served by these controls.
• National Security Controls were to be used to restrict the export of goods and technology, including nuclear non-proliferation items, that would make a significant contribution to the military capability of any country that posed a threat to the national security of the United States.

Coincident with the establishment of the post-war U.S. export control regime was the establishment of a multilateral counterpart involving our NATO allies.

The large amount of critical technology being transferred from the United States to NATO allies, and the growing capability for technological development by the allies themselves required the establishment of a multilateral control regime.

Towards this end, the Coordinating Committee for Multilateral Export Controls (CoCom) was established in 1949. CoCom controls were not a mirror image of U.S. controls but generally did reflect a uniformly high level of restrictions.

With little change in the perceived threat, the Export Control Act was renewed largely without amendment in 1951, 1953, 1956, 1958, 1960, 1962, and 1965.

With the onset of the era of “détente” in the late 1960’s there occurred the first serious reexamination and revision of the U.S. Export control system.

At this time, the growing importance of trade to the U.S. economy and those of our allies began to exert significant political pressure for some liberalization of export controls.

Congress passed the Export Administration Act of 1969 to replace the near-embargo characteristic of the Export Control Act of 1949.

The continued shift of policy toward less restrictive export controls continued in the renewal of the Act in 1974, 1977, 1979, 1985, and some moderate further liberalization occurred in the following years.

The collapse of the Soviet Union in 1989, an event partially attributable to the success of U.S. cold war export control policy, marked a dramatic change in the nature of the external threat the United States now faces. Over the course of the Bush and Clinton Administrations, the export control system has been reduced in scope and streamlined, but the basic structure of the law remains intact.

The dissolution of CoCom in 1994 and its replacement by the Wassenaar Agreement in 1997, also significantly changed the export control environment.

This new multilateral agreement is more loosely structured than CoCom, allowing much wider variance between what is controlled by the United States and other members of the agreement.

Generally more liberal control practices abroad raise important questions about the ultimate effectiveness of U.S. export control (under either the current or a revised EAA) in achieving national security objectives and the fairness of unilateral controls to American industry.

A lack of consensus on key issues has meant that Congress has not been able to agree on measures to reform the Export Administration Act that have been introduced since the 101st Congress. The export control process was continued from 1989-1994 by temporary statutory extensions of EAA79 and by invocation of the International Emergency Economic Powers Act (IEEPA).

Thereafter, export controls were continued for six years under the authority of Executive Order No. 12924 of August 19, 1994, issued under IEEPA authority. Many of those who favor reforming the Act, whether to liberalize or tighten controls, contend that operating under IEEPA imposed constraints on the administration of the export control process and made it vulnerable to legal challenge, thus undermining its effectiveness.

Legislation passed by the House and Senate and signed by the President on November 13, 2000 extended the EAA of 1979 until August 20, 2001, temporarily removing the need to operate the export control system under IEEPA powers. President George W. Bush extended the EAA on August 19, 2001 again under IEEPA powers.

Legislation to rewrite the Export Administration Act was introduced in the 104th - 106th Congress. In the 104th Congress, the House passed the Omnibus Export Administration Act of 1996 on July 16, 1996, after hearings and consideration by the Committee on International Relations, the Committee on Ways and Means, and by the Committee on National Security.

On July 17, 1996, the bill was received by the Senate and referred to the Committee on Banking, Housing and Urban Affairs, which held a hearing but took no further action. In the 106th Congress, the Export Administration Act of 1999 (S1712) was introduced by Senator Michael P. Enzi. On September 23, 1999 the Senate Banking Committee voted unanimously (20-0) to report this legislation to the Senate floor. Action by the Senate on S1712 was not taken due to the concerns of several Senators about the bill's impact on national security. On January 23, 2001, Senator Michael P. Enzi introduced the Export Administration Act of 2001 (S149). Hearings were held on this legislation by the Senate Banking Housing and Urban Affairs Committee in February 2001, and the measure was reported favorably to the Senate by a vote of 19-1 on March 22, 2001. This bill is similar though not identical to the Export Administration Act of 1999 (S1712), introduced by Senator Enzi in the 106th Congress. Like S1712, S149 attempts to update the Act and to strike a new balance in the U.S. export control regime between national security and economic concerns.