BIS License Fee Prohibition Act

— 306 — Mandate for Leadership: The Conservative Promise programs,104 and they focus on research and promotion of commodities such as beef and eggs. Marketing orders cover research and promotion, but also cover issues such as quality regulations and volume controls. The latter issue, volume controls, is a means to restrict supply, which drives up prices for consumers. Fortunately, there are few active volume controls.105 Marketing orders and checkoff programs are some of the most egregious pro- grams run by the USDA. They are, in effect, a tax—a means to compel speech—and government-blessed cartels. Instead of getting private cooperation, they are tools for industry actors to work with government to force cooperation. The next Administration should: l Reduce the number and scope of marketing orders and checkoff programs. The USDA should reject any new requests for marketing orders and checkoff programs to the extent authorized by law and eliminate existing programs when possible. While the programs work differently, there are often petition processes and other ways that make it difficult for affected parties to get rid of the marketing orders and checkoff programs,106 and the USDA itself may not even be required to honor requests to terminate a program.107 The USDA should make the process easier. Further, the USDA should reject any effort to bring back volume controls to limit supplies of commodities. l Work with Congress to eliminate marketing orders and checkoff programs. These programs should be eliminated, and if industry actors want to collaborate, they should do so through private means, not using the government to compel cooperation. l Promote legislation that would require regular votes. There should be regular voting for parties subject to checkoff programs and marketing orders. For example, the voting should occur at least every five years, to determine whether a marketing order or checkoff program should continue. The USDA should be required to honor the results of such a vote. Through regular voting, parties can demonstrate their support for a marketing order or checkoff program and ensure that those administering them will be held accountable. Focus on Trade Policy, Not Trade Promotion. The USDA’s Foreign Agri- cultural Service (FAS) covers numerous issues, including “trade policy,” which is a reference to removing trade barriers, among other things, to ensure an envi- ronment conducive to trade.108 It also covers trade promotion.109 This includes programs like the Market Access Program110 that subsidizes trade associations, — 307 — Department of Agriculture businesses, and other private entities to market and promote their products overseas. FAS should play a proactive and leading role to help open upmarkets for American farmers and ranchers. There are numerous barriers, such as sani- tary and phytosanitary measures, blocking American agricultural products from gaining access to foreign markets.111 However, FAS should not help businesses and industries promote their exports, something these businesses and industries can and should do on their own. The next Administration should: l Push legislation to repeal export promotion programs. The USDA should work with Congress to repeal market development programs like the Market Access Program and similar programs. Remove Obstacles for Agricultural Biotechnology. Innovation is critical to agricultural production and the ability to meet future food needs. The next Admin- istration should embrace innovation and technology, not hinder its use—especially because of scare tactics that ignore sound science. One of the key innovations in agriculture is genetic engineering. According to the USDA, “[C]urrently, over 90 percent of U.S. corn, upland cotton, and soybeans are produced using GE [genet- ically engineered] varieties.”112 Despite the importance of agricultural biotechnology, in 2016, Congress passed a federal mandate to label genetically engineered food.113 This legislation was argu- ably just a means to try to provide a negative connotation to GE food. There are other challenges as well for agricultural biotechnology. For example, Mexico plans to ban the importation of U.S. genetically modified yellow corn.114 The next Administration should: l Counter scare tactics and remove obstacles. The USDA should strongly counter scare tactics regarding agricultural biotechnology and adopt policies to remove unnecessary barriers to approvals and the adoption of biotechnology. l Repeal the federal labeling mandate. The USDA should work with Congress to repeal the federal labeling law, while maintaining federal preemption, and stress that voluntary labeling is allowed. l Use all tools available to remove improper trade barriers against agricultural biotechnology. The USDA should work closely with the Office of the United States Trade Representative to remove improper barriers imposed by other countries to block U.S. agricultural goods.

— 673 — Department of Commerce Export Enforcement officers through improved and frequent training so they are able to detect export-control violations. EAR Revisions. The U.S. Government needs a new export control moderniza- tion effort to tighten the EAR policies governing licenses to countries of concern, including China and Russia (specifically, revise and/or reverse the 2008 through 2016 policies). When authoritarian governments explain what they plan to do, believe them unless hard evidence demonstrates otherwise. Case in point: China’s and Russia’s stated civil–military fusion policies demand central government command-and-control style systems in which every private entity serves the interests of the state and is forced to provide technology, services, capacity, and data to the central govern- ment and the military. Through this structure, commercial activities are routinely weaponized by authoritarian regimes that repeatedly identify the U.S. as an enemy. Accordingly, U.S. export control policies must be updated to reflect these realities and the associated threats to national security. Key priorities for EAR modernization for countries of concern should be: l Eliminating the “specially designed” licensing loophole; l Redesignating China and Russia to more highly prohibitive export licensing groups (country groups D or E); l Eliminating license exceptions; l Broadening foreign direct product rules; l Reducing the de minimis threshold from 25 percent to 10 percent—or 0 percent for critical technologies; l Tightening the deemed export rules to prevent technology transfer to foreign nationals from countries of concern; l Tightening the definition of “fundamental research” to address exploitation of the open U.S. university system by authoritarian governments through funding, students and researchers, and recruitment; l Eliminating license exceptions for sharing technology with controlled entities/countries through standards-setting “activities” and bodies; and l Improving regulations regarding published information for technology transfers. — 674 — Mandate for Leadership: The Conservative Promise The next few years will prove or disprove the assertion that the U.S. stands on the precipice of a Cold War with China. Many believe that a Cold War has already begun; if so, then strategic decoupling from China is necessary and, fundamentally, any exports of goods, software, and technology to countries of concern, whether directly or indirectly, should be prohibited or controlled in the absence of good cause (e.g., humanitarian and medical aid, food aid). Entity List and Sanctions. There are currently just over 500 Chinese and over 500 Russian companies on the Department of Commerce’s Entity List, which reg- ulates exports of controlled and uncontrolled items to designated entities. Given China’s Civil–Military Fusion Strategy and Russia’s massive war efforts facili- tated by a broad range of the Russian economy, BIS must add more entities to the Entity List and apply a license review “policy of denial” that prohibits exports to these entities. Entity List parties that violate export controls should be placed on the BIS Denied Persons List (and thereby lose export privileges) and, if the violations are significant enough, they should also be sanctioned by the Department of Treasury. Data Transfer and Apps Used for Surveillance. Department of Commerce leadership should work across government agencies to address privacy and data concerns arising out of “big tech” from national security and export control per- spectives. In particular, they should draft and implement an executive order (EO) based on the International Emergency Economic Powers Act, which expands export control authority beyond ECRA’s scope (goods, software, technology) to regulate and restrict exports of U.S. persons’ data to countries of concern. The EO should establish a framework for the types of personal data subject to export controls and licensing policy by country, and the BIS should implement the EO through regulations. BIS should additionally designate app providers (such as WeChat and Byte Dance/TikTok) known for undermining U.S. national security through data collection, surveillance, and influence operations, to the Entity List. This listing would prevent app users from program updates, which would quickly make these apps non-operational in the United States. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION Break Up NOAA. The single biggest Department of Commerce agency outside of decennial census years is the National Oceanic and Atmospheric Administration, which houses the National Weather Service, National Marine Fisheries Service, and other components. NOAA garners $6.5 billion of the department’s $12 billion annual operational budget and accounts for more than half of the department’s personnel in non-decadal Census years (2021 figures). NOAA consists of six main offices: l The National Weather Service (NWS);

— 672 — Mandate for Leadership: The Conservative Promise regulate exports of emerging and foundational technologies. Although the scope of such technologies is vast, to date BIS has only controlled just over 40 of these technologies. This does not meet the clear statutory intent of Congress that ECRA be leveraged to ensure that the United States maintains a technological advantage in technologies bearing upon national security interests. Currently, BIS self-identifies technologies that merit control under the EAR with minimal input from other federal agencies. This mechanism should be improved. BIS should create an open, transparent rulemaking process by which any industry participant, private entity, or branch of the government may, at any time, submit nominations for emerging/foundational technologies for control. Then, on a quarterly basis, BIS should make public such recommendations (while holding the identity of the submitter confidential) for public input, followed by an explanation about its ultimate decision to control or not control the items, its reasons, the level of controls applied (stringent or permissive), and the relevant Export Control Classification Number (ECCN) under the Commerce Control List. Commerce should also institute a mechanism whereby its decisions can be challenged, including on a confidential basis. Licensing Procedures: Adjudication and Transparency. Currently, if the Departments of Defense, State, Commerce, and Energy disagree on an export license decision, the disagreement may be escalated to the Operating Commit- tee—and subsequently to the Advisory Committee on Export Policy led by BIS’s Assistant Secretary for Export Administration. The Assistant Secretary does not need to lead the dispute resolution, and this process should be revised by giving lead authority to BIS’s Under Secretary, who is better able to account for diverging views. Moreover, BIS’s authority to overrule other agency votes should be changed. Each agency should have one equal vote and, if a licensing dispute remains unre- solved, the final decision should be elevated to the National Security Advisor and the Secretaries of Defense, State, Commerce, and Energy. Additionally, to improve congressional oversight of BIS’s license adjudication process, BIS should provide specific congressional committees with data from the Automated Export System on a quarterly basis. Electronic files should contain U.S. exporter by name; product description (e.g., harmonized system code and ECCN/U. S. Munitions List designation); end user and destination country; and when a license was required, whether the license was granted or denied. BIS cur- rently denies just 1.2 percent of export licenses. These data reporting requirements can help Congress better determine whether BIS is adequately protecting national security through appropriate use of export controls or whether additional direction from Congress is required. Improve End-Use Checks. The integrity of the export control system may be validated only through adequate end-use checks. BIS must deny export licenses to countries that do not permit adequate end-use checks (e.g., China/Russia) by U.S. authorities. BIS should also strengthen the forensic audit capabilities of its — 673 — Department of Commerce Export Enforcement officers through improved and frequent training so they are able to detect export-control violations. EAR Revisions. The U.S. Government needs a new export control moderniza- tion effort to tighten the EAR policies governing licenses to countries of concern, including China and Russia (specifically, revise and/or reverse the 2008 through 2016 policies). When authoritarian governments explain what they plan to do, believe them unless hard evidence demonstrates otherwise. Case in point: China’s and Russia’s stated civil–military fusion policies demand central government command-and-control style systems in which every private entity serves the interests of the state and is forced to provide technology, services, capacity, and data to the central govern- ment and the military. Through this structure, commercial activities are routinely weaponized by authoritarian regimes that repeatedly identify the U.S. as an enemy. Accordingly, U.S. export control policies must be updated to reflect these realities and the associated threats to national security. Key priorities for EAR modernization for countries of concern should be: l Eliminating the “specially designed” licensing loophole; l Redesignating China and Russia to more highly prohibitive export licensing groups (country groups D or E); l Eliminating license exceptions; l Broadening foreign direct product rules; l Reducing the de minimis threshold from 25 percent to 10 percent—or 0 percent for critical technologies; l Tightening the deemed export rules to prevent technology transfer to foreign nationals from countries of concern; l Tightening the definition of “fundamental research” to address exploitation of the open U.S. university system by authoritarian governments through funding, students and researchers, and recruitment; l Eliminating license exceptions for sharing technology with controlled entities/countries through standards-setting “activities” and bodies; and l Improving regulations regarding published information for technology transfers.