INTERAGENCY COORDINATION AND COOPERATION IN
LICENSING OF STRATEGIC ITEMS
Mi-Yong Kim
Strategic Trade Controls in Continental Southeast Asia
Bangkok, Thailand
August 7-9, 2016
CORE COMPONENTS FOR EFFICIENT AND
EFFECTIVE LICENSING PROCESS
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Identity a licensing authority with appropriate expertise
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Proper permanent legal authority accorded to the licensing body
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Availability of technical expertise – enough to add value to the licensing
process but not so many to create gridlock
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Interagency input into licensing decision, including advisory role of
enforcement
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Escalation process
INTERAGENCY LICENSE REVIEW OF DUAL-USE AND
MUNITIONS PARTS AND COMPONENTS
U.S. EXAMPLE
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Process and timeline set in Executive Order and regulations
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Commerce, Defense, Energy and State vote on licensing decisions
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Commerce is the licensing authority
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PROS OF INTERAGENCY DECISION MAKING
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Government speaks with one voice – each agency brings unique perspective and
expertise to the process
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Commerce – commercial and trade
Defense – national security and defense
Energy – technical review on nuclear issues
State – foreign policy and diplomacy (ability to get feedback from U.S. embassies on the proposed
export)
Intelligence community – information on end-users
No one agency has monopoly on decision-making
CONS OF INTERAGENCY DECISION MAKING
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Time consuming process – based on consensus so wait until all agencies
vote. If consensus cannot be reached, escalated to dispute resolution bodies.
(average processing time – 23 days)
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Not all agencies agree on how regulations should be interpreted.
Discussion may involve licensing offices and others which can lead to
additional delay.
THE FIRST LEVEL IN INTERAGENCY REVIEW
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Application received by Commerce
Reviewed for correctness and
sufficiency
Referred to Defense, Energy, and
State as appropriate
Recommendations to approve,
deny, or return without action from
referral agencies
Approval, denial, or RWA sent by
Commerce
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Interagency groups to consult and
discuss cases at the licensing
officers level – Missile Technology
Export Control Group (MTEC);
SubGroup on Nuclear Export
Coordination (SNEC); The Shield
(CBW cases)
Review cases for catch-all controls
(even if the item is not on the
control list, still deny the export
because of proliferation concerns)
ESCALATION PROCESS WHEN CONSENSUS
CANNOT BE REACHED AT THE LO LEVEL
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Same agencies represented in the escalation process
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Operating Committee (OC)
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Advisory Committee on Export Policy (ACEP)
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Export Administration Review Board (EARB)
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The President
ESCALATION PROCESS (CONTINUED)
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LO level – approximately 37,500 in fiscal year 2015 (higher for fiscal year 2016)
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Operating Committee (OC) – neutral arbiter on the dispute housed in the Bureau of
Industry and Security of Commerce
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400+ cases in fiscal year 2015 (similar for fiscal year 2016)
China and Russia cases
Aerospace technology; electronics for conventional weapons development
Conditions issues – agencies cannot agree on how to restrict the export
Advisory Committee on Export Policy (ACEP) – assistant secretary level review lead
by the Assistant Secretary for Export Administration of Bureau of Industry and
Security of Commerce
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14 cases in fiscal year 2015 (20+ cases for fiscal year 2016)
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Export Administration Review Board (EARB) – secretarial level review lead by
Secretary of Commerce
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The President
INTERAGENCY DECISION MAKING
– A FEW TIPS
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It’s about making the best decision for the government
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It’s not about one agency winning over another agency
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It’s not about you or your agency when decisions are not in your favor
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Have robust but not personal debates
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Not all licenses are meant to be escalated, choose ones with broader policy
implications – pick your battle
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Leave your ego at the door