American leadership in innovation requires, among other things, an export control regime that adapts to the realities of trade in the twenty-first century. The United States understands that the importance of American leadership in innovation reaches far beyond a theoretical debate about American hegemony; it has implications for the national security of the United States. However, Section 736.2(b)(10) of the Export Administration Regulations, known as General Prohibition Ten, creates vulnerabilities that jeopardize the national security of the United States while also adding unnecessary costs to American exporters. General Prohibition Ten makes it impossible for an American exporter to take control of an export once a violation of the Export Administration Regulations has occurred or is about to occur, which threatens American national security. In particular, the regulation reduces American “lead time” in innovation, fails to adapt to new classes of exports and threats, and fails to consider the economic impact of General Prohibition Ten. This article argues that General Prohibition Ten does not comply with Congressional intent and that the Department of Commerce should immediately reform the regulation.
A REGULATORY BACK DOOR: GENERAL PROHIBITION TEN AND AMERICA’S NATIONAL SECURITY,
20 Santa Clara J. Int'l L.
Available at: https://digitalcommons.law.scu.edu/scujil/vol20/iss2/2