I respectfully disagree with Mr. Kennedy’s editorial assessment.
Under Secretary McCormick once stated the obvious: a new Export Administration Act (EAA) is “a good government issue.” Truer words have seldom been spoken. But the Bureau of Industry and Security (BIS) is awash with controversial regulatory proposals which have engendered angry comments from academia and industry. Aside from creating an anticompetitive compliance nightmare for industry and academia alike, the lack of an EAA since 1990 has resulted in an array of ill-conceived initiatives, some of which have, by BIS’s own reckoning, nearly destroyed an industry once enjoying total international market domination.
Absent a firm statutory foundation, some government players have been able to "grab the rudder" and essentially dictate U.S. export policy without observing the traditional statutory balance between national security and international economic performance.
Many of the key pro-competitive and science-friendly provisions enacted by Congress in the late 1980s have evaporated with the expiration of the EAA in 1990. And there are no shortages of Bush Administration and congressional minions dreaming up new “controls,” few of which are well thought through. Some have been withdrawn in response to overwhelming public and international criticism.
In the recent past, cooperation between government, industry and academia resulted in studies (the Bucy Report of 1976, the Corson Study in 1982 and the Allen Report of 1987) which guided Congress to enact pragmatic and thoughtful amendments to the EAA (1979, 1988). Since 1990, however, when the EAA was pocket vetoed by the White House, there has been no consensus guiding what exports our nation controls, to whom and for what reason.
Being an evangelist for a new consensus is not written into McCormick’s job description, but is central to it. Failure to energize the consensus will lead to further confusion and dysfunction in the export regulatory process to the detriment of industry, academia and U.S. scientific leadership. So far, the track record hasn’t been at all encouraging: the legally insupportable “deemed export” regime marches on to the detriment of academia. It is not a “new look” whatsoever—in essence, the ill-conceived proposed enhancement was run out of town this year, and nothing has changed. Other BIS regulations, already disparaged by the American Bar Association when floated last year, appear imminent. Watch for the fireworks.
Scientists in academia and industry both require and deserve regulatory certainty in order to boldly explore. Let’s get our priorities straight—straight away.
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