Where Industry and Security Intersect
What's New | Sitemap | Search
Pursuant to Section 6(j) of the Export Administration Act (the Act), the Secretary of State has designated six countries – Cuba, Iran, Libya, North Korea, Sudan, and Syria – as nations with governments that have repeatedly provided support for acts of international terrorism.
Effective December 28, 1993, the Acting Secretary of State determined that the United States would control five categories of dual-use items subject to multilateral controls to certain sensitive end-users under Section 6(j) of the Act, because these items meet the criteria set forth in Section 6(j)(1)(B) of the Act. Specifically, the Acting Secretary determined that these items, if exported to military, police, or intelligence organizations, or to other sensitive end-users in a designated terrorist-supporting country, could make a significant contribution to that country’s military potential or could enhance its ability to support acts of international terrorism. As a result, any such export is subject to a 30-day congressional notification period prior to approval. The Acting Secretary also advised that the United States should continue to control other items not specifically controlled under Section 6(j) for general foreign policy purposes under Section 6(a) to designated terrorist-supporting countries. These controls are identified in the EAR as anti-terrorism (AT) controls.
On October 7, 2004, the Secretary of State formally rescinded the designation of Iraq pursuant to Section 6(j) of the Act. This followed action previously taken by the President pursuant to Section 1503 of the Emergency Wartime Supplemental Appropriations Act, 2003 (Pub. L. 108-11). On May 7, 2003, the President exercised the authority provided in Section 1503 by issuance of Presidential Determination 2003-23, which, among other things, suspended the application of most provisions of the Iraq Sanctions Act of 1990 (Pub. L. 101-513).
On July 30, 2004, the President signed Executive Order 13350, terminating the national emergency declared in Executive Order 12722, and, thereby, revoking it and certain related Executive Orders. By virtue of this action, and concurrent regulations published the same date by the Department of the Treasury and the Department of Commerce, export licensing jurisdiction reverted to the Department of Commerce.
The July 30, 2004 Department of Commerce rule (69 FR 46069) defined the new licensing policy and requirements for Iraq. At the time of publication, Iraq was on the list of designated terrorist-supporting countries. At this time, pursuant to Section 6(a) of the Act, the Department continues to require a license for export or reexport to Iraq, or transfer within Iraq, of certain items for AT reasons. In the upcoming year, the Department intends to modify these controls to reflect Iraq’s removal from the list of designated terrorist-supporting countries. These and other continuing controls on exports to Iraq are discussed below, as well as in Chapter 5.
On April 23, 2004, the U.S. Government suspended some of its economic sanctions against Libya in response to Libya's continued efforts to dismantle its weapons of mass destruction and MTCR-class missile programs, and to adhere to its renunciation of terrorism. Modification of sanctions under the International Emergency Economic Powers Act (IEEPA) allowed resumption of most commercial activities between the United States and Libya. As a result of these actions, licensing jurisdiction for both the export and reexport of items subject to the EAR returned to the Department of Commerce from the Treasury Department. Also on April 23, 2004, the President's termination of the applicability of the Iran-Libya Sanctions Act with respect to Libya eliminated sanctions under that Act against third-country firms contributing to Libya's WMD programs, petroleum activities, and aviation capabilities. On April 29, 2004, the Department published an amendment to the EAR revising the licensing requirements and policies for the export and reexport of items subject to the EAR to Libya. On September 20, 2004, the President signed an Executive Order terminating the national emergency with respect to Libya and revoked all IEEPA-based sanctions.
On May 11, 2004, the President issued Executive Order 13338, implementing Sections 5(a)(1), 5(a)(2)(A) and 5(a)(2)(D) of the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003 (SAA). In a May 14, 2004, Federal Register notice, the Department revised the licensing policy and requirements for Syria, consistent with E.O. 13338, to restrict all exports or reexports to Syria of items subject to the EAR, with exceptions, as specified in General Order No. 2 in Supplement No. 1 to Part 736 of the EAR. Prior to the implementation of the SAA, the Department maintained controls on the export and reexport of certain items subject to the EAR to Syria for AT reasons, pursuant to Sections 6(j) and 6(a) of the Act. These controls remain in place, but have been superceded by the broader and more stringent license requirements and licensing policy required by the SAA. The Department of Transportation implements Section 5(a)(2)(D) of the SAA.
The paragraphs below describe the items requiring a license for anti-terrorism (AT) reasons for export or reexport to the designated terrorist-supporting countries, as appropriate. Pursuant to the 1993 determination of the Acting Secretary of State, and subsequent action consistent with such determination, certain items are controlled pursuant to Section 6(j) of the Act, while others are controlled pursuant to Section 6(a). The Department of Commerce refers all license applications for items controlled for AT reasons to the Department of State for review. Transactions involving exports or reexports of items controlled pursuant to Section 6(j) to military or other sensitive end-users in designated terrorist-supporting countries, as described in paragraph A below, are subject to a general policy of denial.
With respect to items controlled pursuant to Section 6(a) (including exports or reexports of items described in paragraph A below to non-sensitive end-users), a determination must be made regarding whether the requirements of Section 6(j) apply. If the Secretary of State determines that the particular export “could make a significant contribution to the military potential of the destination country, including its military logistics capability, or could enhance the ability of such country to support acts of international terrorism,” the Department of Commerce and the Department of State must notify the appropriate congressional committees 30 days before issuing a license, consistent with the provisions of Section 6(j) of the Act. Transactions not subject to such requirements are generally reviewed on a case-by-case basis.
However, as described further in Chapter 5, the United States maintains comprehensive embargoes on exports and reexports to Cuba, Iran, Sudan, and Syria. As a result, the U.S. Government reviews license applications for exports and reexports of most items to these countries based on a general policy of denial, with certain very limited exceptions. The Department of Commerce continues to maintain AT controls with respect to these countries, though such controls and the related licensing policies are secondary to the comprehensive embargoes in place.
A. Pursuant to Section 6(j) of the Act, the Department of Commerce requires a license for the export or reexport of the following items to military or other sensitive end-users in all six designated terrorist-supporting countries for AT reasons:
B. Pursuant to Section 6(a) of the Act, the Department of Commerce requires a license for the export of the following items to non-sensitive end-users in all six designated terrorist-supporting countries for AT reasons:
C. Pursuant to Section 6(a) of the Act, the Department of Commerce requires a license for the reexport of the following items to non-sensitive end-users in all six designated terrorist-supporting countries for AT reasons:
D. Pursuant to Section 6(a) of the Act, the Department of Commerce requires a license for the reexport of the following items to non-sensitive end-users in Libya and North Korea for AT reasons:
E. Pursuant to Section 6(a) of the Act, the Department of Commerce requires a license for the export or reexport of the following items to Iran and Sudan for AT reasons:
F. Pursuant to Section 6(a) of the Act, the Department of Commerce requires a license for the export of the following items to Iran and Libya for AT reasons: portable electric generators and specially designed parts, and related software and technology, as set forth in ECCNs 2A994, 2D994, and 2E994.
G. Pursuant to Section 6(a) of the Act, the Department of Commerce requires a license for the export or reexport of the following items to North Korea for AT reasons:
H. Pursuant to Section 6(a) of the Act, the Department of Commerce requires a license for the export or reexport to Iraq, or transfer within Iraq, of the following items for AT reasons:
Anti-terrorism controls are intended to prevent acts of terrorism and to distance the United States from nations that have repeatedly supported acts of international terrorism and from individuals and organizations that commit terrorist acts. The controls demonstrate U.S. resolve not to trade with nations or entities that fail to adhere to acceptable norms of international behavior. The policy provides the United States with the means to control any U.S. goods or services that might contribute to the military potential of designated countries and to limit the availability of such goods for use in support of international terrorism. U.S. foreign policy objectives also are furthered by ensuring that items removed from multilateral regime lists continue to be controlled to designated terrorist-supporting countries. Anti-terrorism controls are maintained with respect to exports and reexports to Cuba, Iran, Sudan, and Syria, as part of broader U.S. embargoes.
On July 30, 2004, the Department of Commerce published a rule defining the new license requirements and licensing policies for Iraq, consistent with the lifting of the comprehensive unilateral embargo (69 FR 46069). At the time of publication of the rule, Iraq was on the list of designated terrorist-supporting countries. As noted above, Iraq was formally removed from that list on October 7, 2004. At this time, pursuant to Section 6(a) of the Act, the Department continues to require a license for export or reexport to Iraq, or transfer within Iraq, of certain items identified above, for AT reasons. The Department will move to amend the EAR and lift the anti-terrorism-based licensing requirements on items destined to Iraq in the near future, and replace them with regional stability controls.
During the past year, Libya: reiterated its assurances to the UN Security Council that it renounced terrorism; took steps to resolve matters related to its past support of terrorism; and, after announcing that it would rid itself of weapons of mass destruction and allow inspections of its nuclear facilities, followed the announcement with substantive action. Libya agreed to compensate the families of non-American victims of the 1989 bombing of a French passenger aircraft (UTA 772) over the Sahara desert and the non-American victims of the 1986 LaBelle Discotheque bombing in West Berlin. Claims of American victims of these attacks remain pending in U.S. Federal Courts. In 2003, Libya also settled privately with the families of the victims of the Lockerbie bombing as part of a larger commitment to meet long-standing UN Security Council demands related to the bombing. In response, the UN terminated its sanctions on September 12, 2003. The United States terminated its ILSA and IEEPA-based economic sanctions in April and September, 2004 in response to Libya's steps to dismantle its WMD programs and MTCR-class missiles.
However, Libya is still designated as a state sponsor of terrorism. The United States continues to have very serious concerns and Libya’s record remains under review.
Under the U.S.-North Korea 1994 Agreed Framework, North Korea agreed to freeze and eventually dismantle its nuclear program in exchange for heavy fuel oil shipments and the construction of two light water reactors that would be difficult to use for proliferation purposes. In December 2002, the Executive Board of the Korean Peninsula Energy Development Organization (KEDO), comprised of the United States, South Korea, Japan, and the European Union, suspended oil shipments to North Korea after discovering that North Korea failed to comply with its commitments under the Agreed Framework, the Nuclear Nonproliferation Treaty, North Korea’s safeguards agreement with the International Atomic Energy Agency, and the Joint North-South Declaration on the Denuclearization of the Korean Peninsula, by pursuing an enriched uranium nuclear program for nuclear weapons. As of December 1, 2003, KEDO’s Executive Board suspended the North Korea light water reactor program for a period of one year in response to North Korea’s nuclear activities. In November 2004, the Board agreed to extend the suspension through November 30, 2005.
In addition, although there has been a bilateral dialogue on terrorism with North Korea, AT controls remain in effect because of unresolved issues concerning North Korea’s continuing support of international terrorism. The purpose of the controls is to restrict the import of equipment useful in enhancing the military or terrorist-supporting capabilities of the regime. The controls also address other U.S. foreign policy concerns, including nonproliferation, human rights, and regional stability.
1. Probability of Achieving the Intended Foreign Policy Purpose. The Secretary has determined that these controls are likely to achieve the intended foreign policy purpose, in light of other factors, including the availability of these AT-controlled items from other countries; and that the foreign policy purpose cannot be achieved through negotiations or other alternative means. Although widespread availability of comparable goods from foreign sources limits the effectiveness of these controls, the controls do restrict access by these countries and persons to U.S.-origin commodities, technology, and software, and demonstrate U.S. determination to oppose and distance itself from international terrorism.
2. Compatibility with Foreign Policy Objectives. The Secretary has determined that these controls are compatible with U.S. foreign policy objectives and specifically with overall U.S. policy toward the designated terrorist-supporting countries. The Secretary has further determined that the extension of these controls will not have any significant adverse foreign policy consequences. These controls affirm the U.S. commitment to restrict the flow of items and other forms of material support to countries, individuals, or groups for terrorist purposes.
3. Reaction of Other Countries. The Secretary has determined that any adverse reaction to these controls is not likely to render the controls ineffective, nor will any adverse reaction by other countries be counter-productive to U.S. foreign policy interests. Most countries are generally supportive of U.S. efforts to fight terrorism and stop the proliferation of weapons of mass destruction in countries of concern.
The United States, in parallel with its obligations as a member of the United Nations, maintained a comprehensive trade embargo on Iraq for 13 years, from 1990 until 2003. On May 22, 2003, the United Nations Security Council issued Resolution 1483, lifting most sanctions on Iraq. The Council also called on the United Nations to assist the Iraqi people in a range of activities including humanitarian relief, reconstruction, infrastructure rehabilitation, legal and judicial reform, and human rights.
As the result of continuing concerns, including the security situation and the presence of insurgent groups and terrorist factions in Iraq, the United States continued to maintain a narrow range of AT controls on Iraq. Although many countries concur that the current security situation in Iraq is destabilizing, few maintain controls similar to those implemented by the United States.
Following the Berlin disco bombing of 1986, the United States imposed broad unilateral economic sanctions on Libya. The UN and the EU also imposed sanctions, in 1992, after Libya was implicated in the bombing of Pan Am flight 103 over Lockerbie, Scotland. In 1999, the UN suspended its sanctions after Libya handed over two suspects for trial, and, in 2003, lifted them after Libya met remaining UN Security Council demands related to the Lockerbie bombing. Following Libya's renunciation of weapons of mass destruction and MTCR-class missiles in December, 2003, and subsequent cooperation with the United States, the UK, and the international community to rid itself of these programs, the United States lifted its ILSA and IEEPA-based economic sanctions in April and September, 2004. Most recently, the EU lifted most of its remaining sanctions against Libya, including lifting of the EU arms embargo.
Although both international and U.S. relations with Libya have improved greatly in the past year, the United States continues to retain its AT controls on Libya. Though many other states share U.S. concerns about Libya's remaining ties to terrorism, few countries continue to maintain controls similar to those implemented by the United States.
The United States maintained a comprehensive trade embargo against North Korea for 50 years, until 1994. In general, the U.S. allies have largely acted in concert with the United States to deny North Korea strategic equipment and technology. The easing of U.S. sanctions toward North Korea and the removal of some U.S. controls in June 2000 were echoed by other Western countries. U.S. allies will likely follow the United States’ lead regarding strategic trade with North Korea until North Korea places further limits on its weapons proliferation and military activities.
4. Economic Impact on United States Industry. The Secretary has determined that the adverse effect of these controls on the economy of the United States, including on the competitive position of the United States in the international economy, does not exceed the benefit to United States foreign policy objectives. The AT controls maintained on designated terrorist-supporting countries as a whole have had some impact on U.S. industry. The impact of such controls is described further below, with respect to countries not presently subject to a comprehensive embargo. The economic impact of comprehensive controls maintained on Cuba, Iran, Sudan, and Syria, countries subject to unilateral U.S. embargo, are described further in Chapter 5.
Although the security situation and the presence of insurgents in Iraq, among other issues, continue to be of concern to the United States, the United States fully supports Iraq’s reconstruction and economic revival. Current licensing policy and requirements reflect Iraq’s complexity and challenges.
From May of 2003 through May of 2004, U.S. exports to Iraq were worth $432.2 million, an increase of $398.7 million from the same time period in calendar years 2002 and 2003. In FY 2004, U.S. exports to Iraq were valued at $599.3 million. In addition to foodstuffs, other strong categories of exports included generators and engines, telecommunications equipment, pharmaceutical preparations, and agricultural supplies.
The Department of Commerce’s rule defining export control policy and regulations for Iraq, which was published on July 30, 2004, is designed to address two significant foreign policy goals. In particular, the rule advances the goal of ensuring that exports and reexports of controlled items destined to civil infrastructure rebuilding do not suffer undue licensing delays. At the same time, in furtherance of applicable UNSC Resolutions and U.S. foreign policy interests, the rule revises section 746.3 of the EAR (15 CFR parts 730-799) and retains substantial restrictions on exports to Iraq destined for inappropriate end-users or end-uses.
Since licensing jurisdiction for Iraq was returned to the Department of Commerce, the majority of license applications received have been for equipment in support of or for use in the reconstruction of Iraq and training activities for its police and military. The Department expects that the number and diversity of applications will increase as more U.S. companies begin work in Iraq.
Until April 29, 2004, the Department of the Treasury licensed exports and transshipments to Libya, and the Department of Commerce licensed reexports. Libya and the United States were active trading partners in the early 1980s, before the imposition of sanctions. Libya exported oil to the United States, and in return, the United States exported goods including Libya’s top three categories of imports: machinery and transport equipment, manufactured goods, and foodstuffs. By the mid-1980s, however, trade restrictions had reduced trading levels to nearly zero. Although as the result of the implementation of the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), agricultural and medical exports could be authorized, the numbers of shipments remained low. For example, between January 2000 and December 2003, the Department of the Treasury reports approving requests for only 85 exports or transshipments of agricultural or medical commodities. From January 1, 1997, to April 28, 2004, the Department of Commerce reviewed 48 reexport applications for agricultural or medical commodities to Libya and approved 16. The remaining 32 were returned without action or denied.
The suspension of some IEEPA-based sanctions against Libya on April 23, 2004, and the Department of Commerce's publication of a regulation revising export licensing requirements and policies for the export and reexport of items subject to the EAR on April 29, 2004, coupled with the subsequent lifting of all IEEPA-based sanctions on September 20, 2004, has had a significant positive impact on U.S. industry, as the U.S. Government no longer requires a license for most items for Libya's leading import sectors, including food, manufactured goods, and many products for the petroleum industry. Between April 29, 2004, and September 30, 2004, the Department approved 27 applications for items for export or reexport to Libya. In the same time period, Commerce returned seven applications without action, primarily because they lacked sufficient information. The Department did not deny any applications for goods destined to Libya during the time period.
The long-term duration of the embargo makes measuring the impact of the remaining controls difficult, as there is little history to suggest what the dollar value of U.S. trade would be, absent export controls (see Table 1). Libya’s total annual imports average around $6 billion. On the basis of information received from exporters, the Department of Commerce anticipates that there is significant opportunity in Libya for a broad array of U.S. goods.
| Fiscal Year | Number of Applications | Total Value in U.S. Dollars |
|---|---|---|
| 1997 | 0 |
$0 |
| 1998 | 0 |
$0 |
| 1999 | 1 |
$553,846 |
| 2000 | 4 | $2,370,422 |
| 2001 | 1 | $305,000 |
| 2002 | 6 | $20,253,594 |
| 2003 | 2 | $682,000 |
| 2004 | 29 | $11,221,569 |
| TOTAL | 43 | $35,386,431 |
U.S. export sanctions on North Korea have had a minimal impact on U.S. industry. North Korea’s total imports average about $1-2 billion per year, with the primary imports including petroleum, coking coal, machinery and equipment, and grain. The CIA World Factbook estimates that North Korean imports totaled $2.04 billion (est.) in 2002 (the most recent year for which figures are available). North Korea’s leading sources of imports in 2002 were China (40 percent), Thailand (15 percent), Japan (11 percent), Germany (8 percent), and South Korea (6 percent).
Based on U.S. Census Bureau statistics, total U.S. exports to North Korea, although far below the levels of other countries, generally increased with the signing of the U.S.-North Korea Agreed Framework in October 1994. Exports rose from only $179,730 in 1994 to between $3 and $4 million annually from 1995 through 1998. In 1999, U.S. exports to North Korea nearly tripled to $11.3 million. However, in 2000, U.S. exports dropped to $2.7 million and in 2001 U.S. exports were only $700,000. The vast majority of these exports were charity shipments. In 2002, U.S. exports to North Korea totaled $25 million, the vast majority of which were in the form of cereals (60 percent) and animal/vegetable fats (20 percent). In 2003, the level of exports dropped to $8.0 million, with dairy products and animal fats accounting for over half of exports, followed by charity donations and cereals.
Export license applications approved by the U.S. Government for North Korea increased from six licenses in FY 1994 to an annual average of 38 licenses in the FY 1995-99 period (see Table 2). However, since FY 2000, the Department has approved only a handful of licenses per year. In FY 2004, the Department approved three licenses for North Korea with a total value of $140,625; no applications were rejected and seven applications (valued at $2.7 million) were returned without action.
On September 17, 1999, President Clinton announced his decision to ease some of the sanctions maintained against North Korea. The sanctions easing was implemented in June 2000, making most U.S. consumer goods eligible for export without a license to North Korea. This accounts for the decline in license applications for North Korea since FY 2000, as the majority of the humanitarian and low-level consumer items formerly requiring a license became eligible to be shipped without a license.
| Fiscal Year | Number of Applications | Total Value in U.S. Dollars |
|---|---|---|
| 1994 | 6 |
$66,443 |
| 1995 | 27 |
$366,498,433 |
| 1996 | 39 |
$209,134,369 |
| 1997 | 47 |
$393,281,396 |
| 1998 | 43 |
$129,113,580 |
| 1999 | 32 |
$407,887,147 |
| 2000 | 10 | $31,130,643 |
| 2001 | 7 | $1,187,232 |
| 2002 | 9 | $2,947,044 |
| 2003 | 0 | $0 |
| 2004 | 3 | $140,625 |
| TOTAL | 220 | $1,541,386,912 |
5. Effective Enforcement of Controls. The Secretary has determined the United States has the ability to effectively enforce these controls. Because of the well-publicized involvement of these countries in acts of international terrorism, there is public knowledge and support for U.S. controls, which facilitates enforcement. The large number of items exported in normal trade to other countries, including some aircraft items and consumer goods that have many producers and end-users around the world, creates innumerable procurement opportunities for brokers, agents, and front companies working for these countries. In addition, differences in export laws and standards of evidence for violations complicate law enforcement cooperation between countries.
The Department of Commerce views these controls as a key enforcement priority, and uses regular outreach efforts and other programs to keep businesses informed of concerns, gather leads on activities of concern, and conduct sentinel visits to verify end-use and end-users of U.S. commodities. The Department is moving to implement a strong program to address procurement by or for designated terrorist-supporting countries. This program includes enhanced agent training, development of a targeted outreach program to familiarize U.S. businesses with concerns, and close cooperation with lead agencies working on terrorism issues.
In a September 28, 2004, Federal Register notice, the Department of Commerce solicited comments from industry on the effectiveness of U.S. foreign policy-based export controls. Comments were solicited from all six of the Department’s Technical Advisory Committees, as well as from the President’s Export Council Subcommittee on Export Administration. Comments also were solicited from the public via the BIS Web page. The comment period closed on November 19 and 12 comments were received. Four comments pertained to AT controls.
One commentator, the Regulations and Procedures Technical Advisory Committee, highlighted concern over the review policy for certain types of encryption software being exported to Libya. The committee that the general policy of denial amounted to a de facto embargo of these products to Libya, and indicated the type of software was routinely packaged with computers and so would pose difficulties for doing business with Libya.
Another comment addressed the perceived dangers of unilateral foreign policy-based export controls, but did not specifically cite anti-terrorism controls. The commentator provided general remarks about unilateral controls, stating that these controls can lead to the growth of international competition for U.S. goods. He cited the example of the rise of Airbus following U.S. restrictions on aircraft exports to the Middle East several decades ago.
A third comment expressed concern about the restrictions the EAR places on humanitarian nonprofit organizations when exporting their equipment for their own internal use to countries subject to U.S. sanctions. The commentator said the restrictions do little to further U.S. foreign policy interests in the sanctioned country, inhibit humanitarian organizations from responding effectively when humanitarian aid is needed, and force humanitarian groups to purchase non-U.S. equipment. The commentator requests that instances where BIS and OFAC both require a license for a single transaction be eliminated since two licenses for the same activity is an unnecessary burden.
The final comment advocated the need for increased multilateral rather than unilateral controls, arguing that unilateral controls disadvantage U.S. exporters unless the United States is the only supplier of a given commodity. Of particular concern to the commentator is the so-called “installed base” issue, which requires verification of the arrival date for U.S. goods currently found in Libya. This verification necessary to establish the legality of a particular transaction requires a huge expenditure of time and money. Foreign companies do not need to expend this time and money, and so are more competitive in Libya. In addition, the commentator stated that delays in licensing replacement parts to previously licensed goods also adversely affect the United States’ competitive position. A detailed review of all comments received can be found in Appendix I.
The United States continues to consult with a number of countries, both on a bilateral and a multilateral basis, on activities of designated terrorist-supporting countries. In general, most countries are supportive of U.S. anti-terrorism efforts but do not implement export control programs similar to that of the United States.
The United States has ongoing consultations with both other countries and the Interim Iraqi Government.
The United States consults on an ongoing basis with other countries regarding Libya’s change in policy as well as the remaining concerns about Libyan behavior. The United States has extensive bilateral discussions with Libya itself on a broad array of issues.
The United States is consulting with its regional allies regarding anti-terrorism controls on North Korea. In December 2002, the United States and its partners in the NSG drafted a “Watch List” of items not currently controlled by the NSG, in response to disclosures regarding North Korea’s nuclear program. These items do not meet the licensing threshold of the NSG export control regime; however, these items may make a material contribution to nuclear activities of concern. Many of the items on the “Watch List” are already controlled by the U.S. Government unilaterally for anti-terrorism reasons. Although the expanded “Watch List” is not intended to be the basis of expanded NSG controls, it has increased the scrutiny by our NSG partners of proposed exports of items that are not NSG-controlled but that the United States controls for anti-terrorism reasons. As of December 1, 2003, KEDO’s Executive Board suspended the North Korean light water reactor program for a period of one year in response to North Korea’s nuclear activities. In November 2004, the Board extended the suspension through November 30, 2005.
The United States has taken a wide range of diplomatic, political, and security-related steps, in addition to economic measures such as export controls, to persuade certain countries to stop their support for terrorist activities. The methods that the United States uses against a country, terrorist organization, or individual vary and are dictated by the circumstances prevailing at any given time. In general, the United States believes that maintenance of AT controls is an appropriate method to demonstrate the obligation of each of the designated terrorist-supporting countries to act against terrorist elements within their jurisdiction or control.
The foreign availability provision does not apply to items determined by the Secretary of State to require control under Section 6(j) of the Act. (8) Congress specifically excluded AT controls from foreign availability assessments otherwise required by the Act, due to the value of such controls in emphasizing the U.S. position on countries supporting international terrorism. However, the Department of Commerce has considered foreign availability of items controlled to designated terrorist-supporting countries under Section 6(a). Although there are numerous foreign sources for commodities similar to those subject to control, the continued maintenance of sanctions by many other countries severely limits the impact of foreign availability. In addition, the continued U.S. Government anti-terrorism controls serve foreign policy interests that override the impact of foreign availability.
7 The Department of Commerce requires a license under Section 6(a) of the Act for all computers going to Iran, North Korea, Sudan, or Syria with a CTP of 6 MTOPS or above. Note also that controls apply to exports of all levels of computers to Cuba and Libya.
8 Provisions pertaining to foreign availability do not apply to export controls in effect before July 12, 1985, under sections 6(i) (International Obligations), 6(j) (Countries Supporting International Terrorism), and 6(n) (Crime Control Instruments). See the Export Administration Amendments Act of 1985, Public Law 99-64, section 108(g)(2), Stat. 120, 134-35. Moreover, sections 6(i), 6(j), and 6(n) require that controls be implemented under certain conditions without consideration of foreign availability.
