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Detailed Information on the
Bureau of Industry and Security Assessment

Program Code 10003100
Program Title Bureau of Industry and Security
Department Name Department of Commerce
Agency/Bureau Name Bureau of Industry and Security
Program Type(s) Regulatory-based Program
Assessment Year 2005
Assessment Rating Moderately Effective
Assessment Section Scores
Section Score
Program Purpose & Design 100%
Strategic Planning 100%
Program Management 73%
Program Results/Accountability 56%
Program Funding Level
(in millions)
FY2007 $75
FY2008 $73
FY2009 $84

Ongoing Program Improvement Plans

Year Began Improvement Plan Status Comments
2006

Work to ensure passage of an updated reauthorized Export Administration Act.

Action taken, but not completed BIS is working to obtain passage of an updated reauthorized Export Administration Act. EAA renewal legislation has been officially transmitted from the Secretary of Commerce to Congress. The Senate Banking Committe has been briefed and is interested in working with BIS on the bill. Industry (coalition members) have been briefed. Press briefings have taken place, with a handful of articles written.
2008

Review and refine new long-term measures based on first year data.

Action taken, but not completed Two long-term metrics have been developed that measure if foreign users are properly protecting sensitive technology and if American companies are properly safeguarding exports of sensitive technologies. Efforts will continue to test and validate the methodology and associated metrics to ensure that they will help drive change and better improve program performance.

Completed Program Improvement Plans

Year Began Improvement Plan Status Comments
2007

Developing a long-term measure related to the effectiveness of the dual-use export control program.

Completed BIS worked throughout FY 2007 to develop a long-term measure. BIS developed two long-term measures in February 2008.

Program Performance Measures

Term Type  
Annual Efficiency

Measure: Percent of licenses requiring interagency referral referred within nine days


Explanation:Approximately 85 percent of all export licenses must be referred to other agencies as dictated by Executive Order 12981. This metric will help BIS monitor the percent of licenses that meet the timeliness requirement of Executive Order 12981. While the EO stipulates that 100 percent of the licenses needing referral be referred within nine days, the licensing process is subject to uncontrollable delays. Therefore, BIS used historical data to set a target of 95 percent.

Year Target Actual
2006 95% 98%
2007 95% 98%
2008 95%
2009 95%
2010 95%
Annual Efficiency

Measure: Median processing time for new regime regulations (months)


Explanation:This is a slight revision to the performance measure, "Median processing time for issuing draft regulations (3 months)" that was used in FY 2004 and FY 2005. The Export Administration program issues new and amended regulations to meet it responsibilities under the Export Administration Act. The majority of BIS regulations issued implement changes agreed to in the four multilateral control regimes in which the United States participates: Wassenaar Arrangement (conventional arms and related sensitive dual-use goods), Nuclear Suppliers Group, Missile Technology Control Regime, and the Australia Group (chemical and biological controls). This measure will track the length of time it takes BIS to issue a draft regulation after regime changes have been received and analyzed. There is a significant amount of time that is spent analyzing each regime resolution before actual drafting of a regulation can begin.

Year Target Actual
2004 3 2
2005 3 1
2006 3 2.5
2007 3 2
2008 3
2009 3
2010 3
Annual Outcome

Measure: Percent of attendees rating seminars highly


Explanation:This is a revision to the performance measure, "Level of exporter understanding of BIS export control requirements." BIS will now measure the outcome of its entire export control outreach seminar program, rather than selective parts. The target is for at least 85percent of the seminar attendees to give the seminar an overall rating of at least 4 (out of a 5 level scale). Outreach seminars help to heighten business awareness of the Administration's export control policy objectives and improve compliance with regulatory requirements.

Year Target Actual
2006 85% 90%
2007 85% 90%
2008 85%
2009 85%
2010 85%
Annual Efficiency

Measure: Percent of declarations received from U.S. industry in accordance with CWC Regulations (time lines) that are processed, certified and submitted to the State Department in time for the U.S. to meet its treaty obligations


Explanation:This is a change to the CWC performance measure "Number of site assistance visits conducted to assist companies prepare for international inspections." The Organization for the Prohibition of Chemical Weapons (OPCW) has revised its basis for selecting U.S. inspections, and the current performance measure does not capture the full impact of the CWC program. During the initial phases of CWC implementation, BIS knew which facilities were going to be inspected by the OPCW because the treaty required all Schedule 1 and 2 facilities to receive an initial inspection. However, all of the Schedule 1 and 2 facilities have been inspected, and the OPCW will reinspect them once every three to five years and conduct a lottery to inspect Schedule 3 facilities and unscheduled discrete organic chemical (UDOC) facilities. BIS has conducted site assistance visits (SAVs) at all Schedule 1, 2, and 3 facilities that have consented to receive them. There are 552 UDOC plant sites subject to inspection, and since 2000 only four of those sites have been inspected. Given the inability to determine which of the facilities will be inspected, and the low frequency of inspection BIS has decided to revise the performance measure. Revising the current performance measure to monitor the declarations process impacts all facilities subject to the CWC Regulations and assigns responsibility for performance on BIS. There are a limited number of factors affecting performance; therefore, BIS has set a target of 100 percent.

Year Target Actual
2006 100% 100%
2007 100% 100%
2008 100%
2009 100%
2010 100%
Annual Output

Measure: Number of actions that result in a deterrence or prevention of a violation and cases which result in a criminal and/or administrative charge


Explanation:This is a slight revision to an existing Government Performance and Results Act (GPRA) measure, "Number of investigative actions that result in the prevention of a violation and cases which result in a criminal and/or administrative prosecution." The data used to support the first clause is expanded to include "deterrence" as well as "preventions." This performance measure will now also include the Office of Antiboycott Compliance advice line inquiries that result in prevention or deterrence, which were not previously captured. The data for the second clause will also be different. BIS used the number of cases referred to Assistant U.S. Attorneys for criminal prosecution and to the Office of Chief Counsel (OCC) for administrative prosecution, in FY 2005 to determine this number. In looking at this data, BIS has concluded that these numbers do not sufficiently capture the impact of its criminal and administrative enforcement work since they are not the ultimate outcomes of the process. By contrast, for FY 2006 BIS will use the number of criminal indictments and informations filed for the criminal number; and the number of administrative settlement orders issued by the Assistant Secretary and judgments by the Administrative Law Judges for the administrative number. This change is reflected in the use of the term "charge." FY 2006 targets were exceeded due to the changes cited above and long term improvements in enforcement practices and the overall increase in the job experience of OEE Special Agents.

Year Target Actual
2006 350 872
2007 450 930
2008 650
2009 775
2010 775
Annual Output

Measure: Number of end-use checks completed


Explanation:This is a revision to GPRA performance measure, "Number of Post-Shipment Verifications (PSVs) Completed." This measure now also includes pre-license checks (PLCs) to better represent the end-use check program. The FY 2006 target for this measure of 700 is based on 500 planned PSVs and 200 PLCs. The PSV target of 500 is a 25 percent increase from FY 2005 due to the increase in the Sentinel funding for FY 2006. The PLC target of 200 is based on the number of PLCs conducted in FY 2005. BIS will exceed the FY 2006 target of 700 end-use checks due to an increased number of PSVs. (PLCs are not anticipated to greatly exceed the target of 200.) The number of PSVs will be exceeded in FY 2006 largely due to Sentinel Program funding. Assuming that the Sentinel Program Enhancement funding will remain in FY 2007 BIS increased its target to 800 end-use checks(600 PSVs + 200 PLCs). Again, the growth is anticipated in the number of PSVs, which is directly associated with Sentinel Trips and funding. Therefore, the FY 2008 target is being increased to 850 (650 PSVs + 200 PLCs). Due to funding of an increased number of Sentinel Trips, the target was exceeded.

Year Target Actual
2006 700 942
2007 850 854
2008 850
2009 850
2010 850
Annual Efficiency

Measure: Percent of industry assessments resulting in BIS determination, within three months of completion, on whether to revise export controls


Explanation:This is a slight revision to an existing performance measure, "Percent of Industry Assessments Resulting in BIS Determination on Export Controls," which was to be implemented in FY 2006 with the creation of the Office of Technology Evaluation. This change in wording makes it clearer that the assessments may or may not result in revisions to export controls. BIS will monitor global technology and market trends to identify new items to be proposed for inclusion on the export control list and for changes in technology that render current controls obsolete. Additionally, BIS will identify very sensitive items that should be subject to heightened scrutiny in the licensing process or items that would be candidates for enhanced control through bilateral or multilateral agreement with other producer countries. BIS will also monitor global market trends to identify ways of doing business that warrant revised export control policies and procedures. BIS will determine for all assessments, within three months of completion, whether export controls should be changed. Two industry assessments were completed late in the fourth quarter of FY 2006. At the end of the fiscal year a determination had not been made, but the three month window had not expired. This resulted in the N/A status for FY 2006.

Year Target Actual
2006 100% N/A
2007 100% 100%
2008 100%
2009 100%
2010 100%
Long-term Outcome

Measure: Percentage of Post-Shipment Verifications completed and categorized above the "Unfavorable" classification (New measure, added February 2008)


Explanation:Post Shipment Verifications (PSVs) confirm whether or not goods exported from the United States actually were received by the party named on the license or other export documentation, and whether the goods are being used in accordance with the provisions of that license. PSVs are selected through the use of a new decision rubric that scores several aspects of a license application. In addition, BIS enforcement analysts research other potential factors to make a final determination on whether to initiate an end-use check to include PSVs. While PSVs are a key component of compliance verification, they also identify diverted transactions and reveal untrustworthy end-users and intermediate consignees. By conducting PSVs, BIS can provide a level of assurance that foreign end-users are aware of BIS license restrictions and comply with them as well as identifying if controlled items were shipped to unqualified end-users. Because BIS does not have the resources to conduct PSVs on every shipment, the bureau must carefully choose which ones to investigate, with a focus on uncovering potential violators. As a result, the PSV sample deliberately over-represents "Unfavorable" outcomes compared to the entire shipment population.

Year Target Actual
2008 80% 215 PSVs
2009 85% 260 PSVs
2010 85% 260 PSVs
Long-term Outcome

Measure: Percent of Shipped Transactions in Compliance with the Licensing Requirements of the Export Administration Regulations (EAR) (New measure, added February 2008)


Explanation:This measure evaluates how effective the dual-use export control system is in ensuring that items subject to a BIS licensing requirement are exported in compliance with the EAR. BIS will measure exporter compliance with the EAR by reviewing, on an annual basis, the entire compilation of export transactions subject to a license requirement (i.e., licensed and license exception shipments) and determining what percentage are in compliance with the EAR following any BIS intervention as necessary. BIS interventions will comprise actions taken to mitigate or resolve non-compliance findings (i.e., counseling, outreach, warning letters, enforcement referral). BIS anticipates that the data evaluation period for this metric will run from July 1-June 30 annually, which is based on the estimated time lag of receipt of shipment information from the Census Bureau (monthly data is released approximately 45 days after the close of the statistical month) and BIS analysis of and action on the data.

Year Target Actual
2008 85%
2009 87%
2010 95%

Questions/Answers (Detailed Assessment)

Section 1 - Program Purpose & Design
Number Question Answer Score
1.1

Is the program purpose clear?

Explanation: The mission of the Bureau of Industry and Security (BIS) is to advance U.S. national security, foreign policy, and economic interests. BIS functions at the intersection of industry and security, facilitating U.S. industrial competitiveness in strategic international trade while preventing the most sensitive goods from falling into dangerous hands. BIS's activities include regulating the export of sensitive dual-use commodities; enforcing export control, antiboycott, and certain public safety laws; cooperating with and assisting other countries on export control and strategic trade issues; assisting U.S. industry to comply with international arms control agreements; and monitoring the viability of the U.S. defense industrial base.

Evidence: Relevant authorities are described in the Department Organization Orders (DOO) 10-16 and 50-1, which prescribe the scope of authority and the functions of the Under Secretary for Industry and Security; Executive Orders 12938, 12981, 13026, 12656, 12919; Export Administration Regulations (EAR); Department of Commerce (DOC) Strategic Plan; DOC Performance and Accountability Report; BIS Annual Report; and BIS Guiding Principles.

YES 20%
1.2

Does the program address a specific and existing problem, interest, or need?

Explanation: BIS meets the Federal government's need to control the export of sensitive dual-use commodities while maintaining U.S. industrial competitiveness and strategic international trade. Meeting this need requires an export administration program to regulate and license dual-use commodities and assist other countries in developing effective export control systems; and an export enforcement and antiboycott compliance program to identify and investigate export control violations. The importance of an export control program has increased following the September 11th attacks and the continuing global war on terrorism.

Evidence: Relevant authorities are described in the Department Organization Orders (DOO) 10-16 and 50-1, which prescribe the scope of authority and the functions of the Under Secretary for Industry and Security; Executive Orders 12938, 12981, 13026, 12656, 12919; EAR; DOC Strategic Plan; DOC Performance and Accountability Report; BIS Annual Report; BIS Guiding Principles.

YES 20%
1.3

Is the program designed so that it is not redundant or duplicative of any other Federal, state, local or private effort?

Explanation: BIS has sole responsibility for administering exports of dual-use commodities under the Commerce Control List and the Export Administration Regulations. Other agencies also have export control responsibilities; DOS controls weapons exports, OFAC enforces economic sanctions, and NRC and DOE control the exports of nuclear material (BIS controls dual-use components of nuclear items). State, local, and private entities are not involved in the administration of dual-use export controls and other BIS functions. BIS works with other departments and agencies in carrying out its export control, treaty compliance, and defense industrial base functions, each agency's role is delineated by statute, executive order, regulation, memorandum of understanding (MOU), or other mechanisms. BIS dual-use export licenses are reviewed in an interagency process. EO 12981 sets forth the roles of BIS and the Departments of State, Energy, and Defense in reviewing dual-use export license applications. BIS has MOUs with the Bureau of Immigration and Customs Enforcement (ICE) setting forth each agency's dual-use export control enforcement responsibilities and with the Defense Threat Reduction Agency (DTRA) on responsibilities under the Chemical Weapons Convention (CWC) Implementation Act. BIS has sole responsibility for assisting US industry to comply with international arms control agreements, these include the Chemical Weapons Convention Treaty, Additional Protocol, and the Biological Weapons Convention. BIS also coordinates its investigative and enforcement activities with the Federal Bureau of Investigation (FBI) and Department of Homeland Security (DHS) to maximize the focus of BIS resources on dual-use related export enforcement.

Evidence: Relevant authorities are described in the Department Organization Orders (DOO) 10-16 and 50-1, which prescribe the scope of authority and the functions of the Under Secretary for Industry and Security; Executive Orders 12938, 12981, 13026, 12656, 12919; EAR; DOC Strategic Plan; DOC Performance and Accountability Report; BIS Annual Report; BIS Guiding Principles; EO 12938, 12981, 13026, 12656, 12919; MOU with ICE; MOU with the Central Intelligence Agency (CIA); MOU with DTRA.

YES 20%
1.4

Is the program design free of major flaws that would limit the program's effectiveness or efficiency?

Explanation: The design of the BIS export administration and enforcement programs is largely free of major flaws - controlling exports by regulations, including an interagency review process and multilateral regime participation, and investigating export control violations are appropriate mechanisms to achieve the program's mission. BIS also continuously works closely with other intelligence agencies to prioritize its activities to address emerging threats. However, a revised, reauthorized Export Administration Act (EAA) that will clarify some outdated control requirements, increase penalties for violations to replace inadequate penalties (e.g. under current authority, administrative penalties are only $11,000/violation and criminal penalities are $50,000/violation) and clarify interagency licensing processes is needed to improve efficiency and effectiveness.

Evidence: Relevant authorities are described in the Department Organization Orders (DOO) 10-16 and 50-1, which prescribe the scope of authority and the functions of the Under Secretary for Industry and Security; Executive Orders 12938, 12981, 13026, 12656, 12919; EAR; DOC Strategic Plan; DOC Performance and Accountability Report; BIS Annual Report; BIS Guiding Principles; FY 2006 President's Budget.

YES 20%
1.5

Is the program design effectively targeted so that resources will address the program's purpose directly and will reach intended beneficiaries?

Explanation: BIS develops annual action plans within the export administration and enforcement programs to address its overall purpose of advancing national security by controlling the export of dual-use commodities. The priorities are to ensure that dual-use commodities are not used in weapons of mass destruction proliferation activities, terrorist attacks, or by unauthorized foreign milittary forces. Annual export control action plans are focused to address these priorities by making any revisions to export control policies on specific commodities and toward specific countries as warranted (e.g. reviewing existing export control policy to China and revising high performance computer controls), as well as focusing resources toward successful resolution of the most significant enforcement cases (those that prevent the proliferation of Weapons of Mass Destruction and the activities of terrorists) and enhancing outreach to high-risk industries. BIS also has worked with its interagency partners to develop common, annual export control priorities. Managers weekly assess performance data against strategic goals and annual action plans and emerging threats to adjust priorities, reallocate resources, and take appropriate actions to ensure ongoing progress. Annual budget requests are formed based on the export control priorities and action plans.

Evidence: FY 2006 President's Budget; annual BIS export control priorities and action plans

YES 20%
Section 1 - Program Purpose & Design Score 100%
Section 2 - Strategic Planning
Number Question Answer Score
2.1

Does the program have a limited number of specific long-term performance measures that focus on outcomes and meaningfully reflect the purpose of the program?

Explanation: BIS has one long-term performance measure: the percentage of targeted deficiencies remedied in the export control systems of other nations. BIS should continue to develop a long-term measure related to proliferation.

Evidence: FY 2006 President's Budget and 2006 annual performance plan; DOC's 2005 Interagency Export Control Policy Priorities

YES 11%
2.2

Does the program have ambitious targets and timeframes for its long-term measures?

Explanation: BIS has a new long term measure (percentage of deficiencies remedied in the export control systems of nations) for which it is developing ambitious targets. This is a modification of an existing measure (number of targeted deficiencies remedied in export control systems of foreign nations), and as BIS continues to collect data on the new measure, will finalize the baseline.

Evidence: DOC's 2005 Interagency Export Control Policy Priorities; 2006 Budget and Annual Performance Plan

YES 11%
2.3

Does the program have a limited number of specific annual performance measures that can demonstrate progress toward achieving the program's long-term goals?

Explanation: BIS has eight annual measures that are linked to its long-term goals. BIS measures the export license processing time (both internally and the time required to send licenses to other agencies); the time to publish regulations (this addresses the time to update its control list, for example to reflect any changes from the multilateral export control regimes); the level of exporter understanding of export control requirements (measured by surveys at export control seminars); industry assessments that affect export controls (this examines whether controls are adequate based on the type of technology and the foreign and mass market availability); the number of investigative actions that result in the prevention of a violation and cases which result in a criminal or administrative prosecution; the number of end-use checks, or post-shipment verifications; and the percentage of cist assistance visits conducted to assist companies to prepare for international inspections under the chemical weapons convention. BIS should also consider a measure of the accuracy of the license process, and a measure on the work BIS does in ensuring other countries have an effective CWC inspection program.

Evidence: Annual performance measures are contained in 2006 Budget and 2006 annual performance plan, 2004 and 2005 performance and accountability report; monthly performance report prepared by BIS's Office of Planning, Evaluation and Management; and the BIS Annual Report.

YES 11%
2.4

Does the program have baselines and ambitious targets for its annual measures?

Explanation: In general, most of the targets for the annual measures are ambitious. However, the timeliness targets of export license review could be more ambitious based on actual processing times. Statutory targets should be a guideline.

Evidence: Annual performance measures and targets are contained in 2006 Budget and 2006 annual performance plan, 2004 and 2005 performance and accountability report; monthly performance report prepared by BIS's Office of Planning, Evaluation and Management; and the BIS Annual Report.

YES 11%
2.5

Do all partners (including grantees, sub-grantees, contractors, cost-sharing partners, and other government partners) commit to and work toward the annual and/or long-term goals of the program?

Explanation: BIS collaborates with the Departments of State, Treasury, Energy, Defense, Justice, Homeland Security, FBI, and the CIA in carrying out its export control, treaty compliance, defense industrial base, and antiboycott functions. In particular, BIS relies on the Departments of State, Defense, and Energy to review export license applications. The interagency license review process and timeframes are specified under EO 12981. These timeframes form the basis for some of BIS's performance measures. BIS also collaborates with the Department of State on the Export Control and Related Border Security Assistance (EXBS) program, which is the U.S. Government's premier initiative to help other countries improve their export control systems. An MOU with DOS describes this program's objectives, how they are linked to DOS and BIS strategic goals, and a workplan with specific deliverables required by the end of the MOU period. BIS also relies on ICE and USFCS for foreign investigations and prelicense checks. MOUs between ICE and USFCS are intended to make effective use of limited investogatory resources, encourage interagency cooperation, reduce the possibility for duplicative investigations, and minimize the potential for dangerous situations which might arise from uncoordinated efforts. The MOUs contain performance and timeliness targets and reporting requirements that contribute to BIS' performance goals. BIS also ensures that its private sector contractors work to meet BIS's goals through the use of performance based contracts. Contracts contain specific performance milestones and are regularly monitored.

Evidence: EO 12981 contains the interagency license review roles and responsibilities. MOU with DOS on the Export Control and Related Border Security Assistance (EXBS) program; MOU with ICE on pre-license checks, post shipment verifications, and joint investigation work. Example of IT contract with performance milestones and targets.

YES 11%
2.6

Are independent evaluations of sufficient scope and quality conducted on a regular basis or as needed to support program improvements and evaluate effectiveness and relevance to the problem, interest, or need?

Explanation: The National Defense Authorization Act (NDAA) of 2000 mandates that each year from 2000 through 2007, the DOC Inspector General (IG), in conjunction with the IGs at the Departments of Defense, Energy, State, and the Treasury, issue a report to the Congress on the policies and procedures of the U.S. Government with respect to the export of technologies and technical information to countries and entities of concern. The IG has issued six reports, one for each year from 2000 to 2005. These reports have assessed several components of the export control processes including management of the Commerce Control List, enforcement of dual-use export control laws, deemed exports, and licensing for chemical and biological commodities. The GAO has also conducted assessments on post-shipment verifications, deemed exports, and controls on technologies used in cruise missiles and unmanned aerial vehicles. These regular, independent assessments have examined several aspects of the export control process. The NRC also conducted a few assessments of export control policies in the mid-1990s following the changes from the cold-war Coordinating Committee for Multilateral Export Controls export control regime to the Wassenaar Regime.

Evidence: IG Reports: 1) Improvements are needed in programs designed to protect against the transfer of sensitive technologies to countries of concern, IPE-12454-1, March 2000; 2) Management of the Commerce Control List and related processes should be improved, IPE-13744, March 2001; 3) BXA needs to strengthen its ECASS modernization efforts to ensure long-term success of the project, IPE-14270, Feb 2002; 4) Improvements are needed to better enforce dual-use export control laws, IPE-15155, March 2003; 5) Deemed export controls may not stop the transfer of sensitive technology to foreign nationals in the United States, IPE-16176, March 2004; and 6) The export licensing process for chemical and biological commodities is generally working well, but some issues need resolution, IPE-16946, March 2005. Recent GAO reports include: GAO-04-175 Nonproliferation - Improvements Needed to Better Control Technology Exports for Cruise Missiles and Unmanned Aerial Vehicles; GAO-04-357 Export Controls - Post-Shipment Verification Provides Limited Assurance That Dual-Use Items Are Being Properly Used; GAO-02-972 Export Controls - Department of Commerce Controls over Transfers of Technology to Foreign Nationals Need Improvement. NRC Report: Dual-Use Technologies and Export Control in the Post-Cold War Era, 1994

YES 11%
2.7

Are Budget requests explicitly tied to accomplishment of the annual and long-term performance goals, and are the resource needs presented in a complete and transparent manner in the program's budget?

Explanation: BIS's budget requests are divided into two main program areas, export administration and export enforcement. Performance goals are integrated within these two main program areas and the impact of funding on expected performance is clear. All direct costs needed to attain performance results are reported. BIS is developing the necessary accounting codes to track expenditures at the activity level (licensing, commodity classifications, policy analysis, outreach and investigations).

Evidence: FY 2006 President's Budget; DOC Strategic Plan.

YES 11%
2.8

Has the program taken meaningful steps to correct its strategic planning deficiencies?

Explanation: The program develops annual (and often more frequent) policy priorities and action plans to address its overall purpose of advancing national security by controlling the export of dual-use commodities. Progress on these and the related GPRA goals are tracked on a monthly basis and corrective actions are taken as necessary to improve performance or address emerging threats. The program is revising its annual goals to make sure they align with the long-term goal, meaningfully reflect the purpose of the program, and have ambitious targets.

Evidence: DOC Strategic Plan; FY 2006 President's Budget; BIS goals and objectives plans; IT Strategic Plan.

YES 11%
2.RG1

Are all regulations issued by the program/agency necessary to meet the stated goals of the program, and do all regulations clearly indicate how the rules contribute to achievement of the goals?

Explanation: The regulations issued by BIS are required to meet its long-term export control, treaty compliance, and defense industrial base goals. Often, they are required by law. In its export control program, for example, BIS issues regulations in response to changes in the multilateral export control regimes, legislation, Administration foreign policy decisions, domestic initiatives, and GAO/IG recommendations. Each regulation includes a description of why the regulation is being issued, however BIS can improve the preambles to more clearly state the context of the authorities governing the regulatory changes.

Evidence: EAR; GAO and IG Reports; Rule Implementing Cuba Commission Report, June 22, 2004, 69 Fed Reg 34565; Rule Implementing Syria Accountability and Lebanese Sovereignty Act of 2003, May 14, 2004, 69 Fed Reg 26766; Rule Implementing Changes to U.S. Export Controls for Libya, April 29, 2004, 69 Fed Reg 23626.

YES 11%
Section 2 - Strategic Planning Score 100%
Section 3 - Program Management
Number Question Answer Score
3.1

Does the agency regularly collect timely and credible performance information, including information from key program partners, and use it to manage the program and improve performance?

Explanation: BIS collects and monitors performance information related to its long-term and annual measures. These data include intelligence information about illegal exports, timeliness of license review and regulation publication, progress on investigations and post-shipment verifications (end-use checks), and feedback from outreach seminars. BIS uses these data to develop annual priorities and action plans to address its overall purpose of advancing national security by controlling the export of dual-use commodities. Annual priorities and associated activities are focused to address any revisions to export control policies on specific commodities and toward specific countries as warranted, as well as focusing resources toward successful resolution of the most significant enforcement cases (those that prevent the proliferation of Weapons of Mass Destruction and the activities of terrorists) and enhancing outreach to high-risk industries. Managers weekly assess performance data against strategic goals and annual action plans and adjust priorities, allocate resources, and take appropriate actions to ensure ongoing progress. For example, Export Enforcement managers carefully follow progress on the number of post-shipment verfications and other intelligence information. In mid 2005, EE managers determined that additional checks in certain countries would be of interest and important for BIS' mission. They proceeded to allocate additional resources to schedule more post-shipment verifications for the remainer of 2005. The program has baseline data and ambitious targets for most of its performance measures. BIS should collect more data on the effectiveness of export systems of foreign countries and on foreign availability and mass market availability of items on the CCL.

Evidence: Monthly BIS Performance Reports prepared by BIS's Office of Planning, Evaluation and Management; 2006 Budget and annual performance plan, 2004 and 2005 performance and accountability report

YES 9%
3.2

Are Federal managers and program partners (including grantees, sub-grantees, contractors, cost-sharing partners, and other government partners) held accountable for cost, schedule and performance results?

Explanation: Performance plans for program managers contain clearly defined and quantifiable performance standards. The program should make sure that its long-term measures are incorporated within managerial performance plans. Several MOUs with program partners contain performance milestones and schedules that are linked to the accomplishment of BIS' performance goals. IT contracts also contain specific milestones and are monitered on a regular basis.

Evidence: Examples of IT Contracts; MOU with ICE; MOU with CIA; MOU with DTRA; MOUs with the National Oceanic and Atmospheric Administration (NOAA); MOU with the International Trade Administration (ITA); MOU with DOC Office of Computer Services.

YES 9%
3.3

Are funds (Federal and partners') obligated in a timely manner and spent for the intended purpose?

Explanation: BIS prepares monthly obligation plans for the EA and EE programs that are consistent with budget requests and appropriations. The program also has procedures for reporting and tracking actual expenditures to ensure they are spent as intended. Program managers monitor the obligation of funds and actual expenditures to ensure they are spent according to the plan and for the intended purposes. Annually, BIS typically obligates 99% of its appropriation.

Evidence: Monthly obligation plans submitted with apportionments. SF-133 Budget Execution Report, Commerce Administrative Management System (CAMS) Reports.

YES 9%
3.4

Does the program have procedures (e.g. competitive sourcing/cost comparisons, IT improvements, appropriate incentives) to measure and achieve efficiencies and cost effectiveness in program execution?

Explanation: Competitive Sourcing/IT investments: BIS reviews its functions and positions to determine opportunities for competitive sourcing on an annual basis. Since the majority of the work performed by BIS is in the export control, law enforcement, and treaty compliance areas, which are classified as inherently governmental, opportunities for competitive sourcing in these areas are limited. For eligible commercial functions, BIS does use contractors, such as for IT support, administrative support, and for providing assistance to other countries to improve their export control programs. BIS adapts its Export Control Automated Support System (ECASS), the export licensing system, to improve the efficiency of the license review process by using it to facilitate interagency review and by regularly incorporating export enforcement information to help ensure licensing officers have updated enforcement information that should be considered in decisions to grant or deny a license. BIS also administers Web-DESI (Web-Data Entry Software of Industry), which allows industry to submit CWC declarations and reports via the Internet in a secure environment. Efficiency Measures: BIS has efficiency measures on the timeliness of its licensing decisions and issuing draft regulations.

Evidence: 2006 Budget and annual performance plan; FAIR Act Inventory Report; IT improvement plans/business cases for ECASS.

YES 9%
3.5

Does the program collaborate and coordinate effectively with related programs?

Explanation: BIS coordinates with the Departments of State, Defense, Energy, Treasury, Justice, and Homeland Security, the FBI, and the CIA to develop and implement U.S. export control policy, participate in multilateral regimes, and process export control licenses (e.g. by the EO 12981 process). BIS works with other law enforcement agencies (e.g. ICE) to enforce the EAR and participates in the Homeland Security Council's interagency review of the recommendations of the WMD Commission, the Suppliers Interdiction Group, composed of numerous agecnies working to implement the Proliferation Security Initiative (PSI), the FBI-led Joint Terrorism Task Forces, Regional Counterintelligence Working Groups and other joint investigations addressing counter-proliferation and counter-terrorism issues. BIS also works with the Department of State to assist other countries in strengthening their export control programs and coordinates U.S. implementation and compliance with the CWC. BIS works closely with DOD to develop, promote, and implement policies that ensure a strong, technologically superior U.S. defense industrial base and to ensure the timely availability of industrial resources to meet current national defense and emergency preparedness requirements. The MOUs with DHS provide guidance on coordinating joing investigations and other enforcement activity, and on sharing information in furtherance of enforcement efforts. Under the MOU with ICE, EE coordinate with ICE when foreign investiations are required. This collaboration often results in significant resource conservation. BIS collaborated on a recent PSI with DOJ, DHS, and State which prevented the illegal shipment of proliferation-related material to a country to concern (BIS supplied the legal basis for the seizure of unauthorized shipments, DOS negotiated with foreign governments, DOJ filed the necessary court documentation, and DHS seized and shipped the cargo back to the U.S.).

Evidence: The relevant authorities are contained in DOO 10-16 and 50-1, which prescribe the scope of authority and the functions of the Under Secretary for Industry and Security; EAR; DOC Strategic Plan; DOC Performance and Accountability Report; BIS Annual Report; BIS Guiding Principles; EO 12938, 12981, 13026, 12656, 12919; MOU with ICE; MOU with CIA; MOU with DTRA.

YES 9%
3.6

Does the program use strong financial management practices?

Explanation: The financial management system used to provide BIS's accounting and financial information meets all statutory requirements. Financial information is accurate and timely. Financial planning and performance management support day-to-day operations. BIS's financial management practices have resulted in a clean opinion on its financial audit in 2004.

Evidence: Annual BIS Certification Letter to the DOC Secretary on Federal Managers' Financial Integrity Act Certification; FY 2004 Department of Commerce Financial Report, Performance Accountability Report; Commerce/BIS CAMS documentation

YES 9%
3.7

Has the program taken meaningful steps to address its management deficiencies?

Explanation: Senior managers meet weekly with top management, during which time they review performance and identify challenges, develop plans to address them, and monitor progress. Program managers regularly review workload reports from ECASS and from EE-specific IT systems, such as status of pending cases and list of overdue cases. BIS also takes prompt action on the GAO and IG recommendations. The program is working to ensure that all managers have clearly defined performance standards incorporated into their individual performance plans.

Evidence: GAO and IG Reports and BIS Action Plans; Monthly Performance Reports prepared by BIS's Office of Planning, Evaluation and Management; ECASS reports.

YES 9%
3.RG1

Did the program seek and take into account the views of all affected parties (e.g., consumers; large and small businesses; State, local and tribal governments; beneficiaries; and the general public) when developing significant regulations?

Explanation: BIS solicits and incorporates the views of industry when developing regulations. BIS solicits public comments through the publication of interim and proposed rules, allowing U.S. industry and the public to comment on the regulations. Once industry comments are received and reviewed by the government, regulations are often revised to address the comments made by industry. Comments and responses are usually included as part of the preamble to the final rule. On several occasions in FY 2004 and FY 2005, BIS published subsequent clarifications to published rules to account for industry comments, questions, and concerns. BIS also administers Technical Advisory Committees (TAC), consisting of industry and government members, to obtain input on the effects of proposed regulations on U.S. industry. BIS also seeks input from the public during outreach seminars conducted each year. BIS often directly publishes final rules by obtaining a national security exemption under the Administrative Procedures Act. Most of BIS's regulations are not significant for purposes of E.O.12866. However, BIS should make every effort to solicit and address public comments more extensively, as required under the regulatory principles of E.O. 12866.

Evidence: Federal Register notices of BIS regulations, available at: www.access.gpo.gov/bis/fedreg/ear_fedreg.html

YES 9%
3.RG2

Did the program prepare adequate regulatory impact analyses if required by Executive Order 12866, regulatory flexibility analyses if required by the Regulatory Flexibility Act and SBREFA, and cost-benefit analyses if required under the Unfunded Mandates Reform Act; and did those analyses comply with OMB guidelines?

Explanation: BIS does not routinely prepare regulatory impact analyses and cost-benefit analyses. Since BIS often publishes final and interim final rules, it does not conduct analyses required by the Regulatory Flexibility Act and Unfunded Mandates Reform Act. Most of its regulations are not significant for purposes of EO 12866, however the program has published 10 rules in the last 4 years that were considered significant for purposes of EO 12866. The program did not conduct regulatory impact analyses for these rules. The program maintains that it considers the costs of its regulations in the interagency process of developing its regulations and by consulting with its technical advisory groups and U.S. industry. There is little evidence that the program systematically considers the cost of its regulations, assesses available alternatives, and designs its regulations in a cost-effective manner.

Evidence: Federal Register notices of BIS regulations, available at: www.access.gpo.gov/bis/fedreg/ear_fedreg.html

NO 0%
3.RG3

Does the program systematically review its current regulations to ensure consistency among all regulations in accomplishing program goals?

Explanation: Although the process of drafting new regulations includes ensuring consistency with existing regulations, BIS has not comprehensively reviewed its regulations in over 7 years. BIS does periodically promulgate "fix-it" rules to further ensure the regulations provide the public with precise and accurate information. BIS last conducted a comprehensive review of its regulations between 1996 and 1998. During this review, the program restructured its regulations to make them more transparent and user-friendly. The program's regulations are also updated on an annual basis following changes in the four multi-lateral control regimes. However the program should conduct more regular, systematic reviews of the EAR. The program has requested resources in the 2006 Budget to, among other things, conduct a thorough review of the CCL to ensure that items are appropriately controlled for the protection of national security.

Evidence: Federal Register notices of BIS regulations, available at: www.access.gpo.gov/bis/fedreg/ear_fedreg.html

NO 0%
3.RG4

Are the regulations designed to achieve program goals, to the extent practicable, by maximizing the net benefits of its regulatory activity?

Explanation: BIS maintains that all regulations are designed to implement the mission of BIS without unnecessarily burdening U.S. industry. BIS consults closely with industry during the regulatory process, ensuring the maximum benefit at the minimum possible cost to industry. However, as discussed in Question 3.R2, there is little evidence that the BIS systematically considers the costs of its regulations.

Evidence: Federal Register notices of BIS regulations, available at: www.access.gpo.gov/bis/fedreg/ear_fedreg.html

NO 0%
Section 3 - Program Management Score 73%
Section 4 - Program Results/Accountability
Number Question Answer Score
4.1

Has the program demonstrated adequate progress in achieving its long-term performance goals?

Explanation: BIS has one long-term goal: the percentage of targeted deficiencies remedied in the export control systems of other nations. While BIS has not tracked this information on a percentage basis through FY 2005, in measuring the number of targeted deficiencies BIS has met its targets.

Evidence: DOC's Interagency Export Control Policy Priorities, dated January 6, 2005.

LARGE EXTENT 11%
4.2

Does the program (including program partners) achieve its annual performance goals?

Explanation: BIS met eight of its nine GPRA measures in FY 2004. The ninth measure was not met only because Congress did not pass needed legislation to implement the Protocol Additional to the IAEA Safeguards Agreement.

Evidence: 2004 DOC Performance and Accountability Report; BIS's Monthly Performance Reports prepared by BIS's Office of Planning, Evaluation and Management; BIS Annual Report.

LARGE EXTENT 11%
4.3

Does the program demonstrate improved efficiencies or cost effectiveness in achieving program goals each year?

Explanation: With relatively flat resources from FY 2003 to FY 2004, BIS exceeded its timeliness targets for the review of export licenses, improved the processing times of the commodity classifications, from 22 days in FY 2003 to 15 days in FY 2004, and commodity jurisdictions, from 70 days in FY 2003 to 59 days in FY 2004. The number of export licenses reviewed by BIS has increased from 12,443 in FY 2003 to more than 15,000 in FY 2004. BIS also exceeded its FY 2004 target for the number of cases accepted for prosecution (310 versus a target of 250) and conducted 401 post-shipment verifications as compared to its target of 375.

Evidence: DOC Performance and Accountability Report; BIS's Monthly Performance Reports prepared by BIS's Office of Planning, Evaluation and Management.

LARGE EXTENT 11%
4.4

Does the performance of this program compare favorably to other programs, including government, private, etc., with similar purpose and goals?

Explanation: The EA program compares favorably to other U.S. government agencies as well as to foreign government export-control programs. The EA program has introduced electronic filing and processing systems which have been adopted by other Federal agencies. When compared to other countries, the U.S. is typically regarded as adhering to the multi-lateral export control regimes and having strict national export controls.

Evidence: In FY 2004, BIS processed 15,534 licenses with 51 licensing officers. The Department of State processed 54,928 licenses with 32 staff. The Department of State controlled items are often repeat licenses on major defense programs. BIS must engage in a more thorough review given the complexity of dual-use license issues (e.g., shipments to China, which are precluded for the Department of State controlled items). In addition, almost all BIS licenses (92%) require interagency review with possible dispute resolution. Most of the Department of State license applications are not referred to other agencies for review. Further, the Department of State relies on technical assistance from DOD. BIS licensing officers, many of whom are engineers or scientists with commercial and military experience, do their own technical analysis. In addition to these responsibilities, BIS licensing officers also have other responsibilities, including processing several thousand commodity classifications annually, and policy work (i.e., assisting with regulations, writing required reports, participating in multilateral list review, conducting outreach, participating in foreign export control training programs). Similarly, in enforcement, BIS's mission is much narrower than that of the FBI or ICE, making comparisons very difficult. The missions of FBI and ICE are much broader than the mission of EE. Information on compliance in multilateral export control regimes are available at: www.bxa.doc.gov/policiesandregulations/multilateralexportregimes.htm

LARGE EXTENT 11%
4.5

Do independent evaluations of sufficient scope and quality indicate that the program is effective and achieving results?

Explanation: Program evaluations have shown mixed findings. The Weapons of Mass Destruction Commission noted that BIS effectively administers and enforces the Export Administration Regulations and that its law enforcement authorities place it in a position to collect large amounts of information that could be of great utility to the Intelligence Community. The WMD Commission recommended, similar to the problems identified in Q 1.4, that the Export Administration Act be reauthorized to provide better authorities to impose increased penalties for export violations and more authority to conduct undercover activities of potential intelligence value. The GAO and Commerce IG reviews of various aspects of EA's programs have indicated some areas of improvement including controls on the exports of cruise missiles and unmanned aerial vehicles; improvements in the deemed export controls of sensitive technology to foreign nationals in the United States; improvements in information sharing within multilateral export control regime members; and improvements in post-shipment verification procedures. BIS developed action plans to respond to and address these recommendations. However, BIS has not completed all of the IG recommendations, including methods to analyze and track the cumulative effect of dual-use exports to countries and entities of concernl; to strengthen the current license application review practices; and develop a compliance program that effectively evaluates deemed export licence holders' compliance with license conditions.

Evidence: GAO and IG Reports; GAO and IG recommendation action plans; Weapons of Mass Desctruction Commission report, available at www.wmd.gov/report/.

SMALL EXTENT 6%
4.RG1

Were programmatic goals (and benefits) achieved at the least incremental societal cost and did the program maximize net benefits?

Explanation: To the extent that the EA program's regulations are not significant under E.O. 12866 and subject to the Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act (SBREFA), the program attempts to design its regulations to minimize regulatory cost, as evidenced in the Simplified Network Application Process (SNAP) regulation. However, there is little evidence that the program has systematically considered the costs of its regulations.

Evidence: Federal Register notices of BIS regulations, available at: www.access.gpo.gov/bis/fedreg/ear_fedreg.html

SMALL EXTENT 6%
Section 4 - Program Results/Accountability Score 56%


Last updated: 09062008.2005SPR