"Don't try to bullshit a bullshitter," admonished Chairman Brian Mast (R-FL), as Assistant Commerce Secretary for Export Administration Thea Kendler responded to his subcommittee's questions on decision making in the Bureau of Industry and Security.
Observers who thought Oversight and Accountability Subcommittee of the House Committee on Foreign Affairs hearing "Reviewing the Bureau of Industry and Security, Part II: U.S. Export Controls in an Era of Strategic Competition," with Ms. Kendler and Assistant Secretary for Export Enforcement Matt Axelrod would inform the conversation on enforcement priorities and resources may have been disappointed December 12, as the committee's questioning centered on a deal removing China's Ministry of Public Security’s Institute of Forensic Science (IFS) from the entity list.
IFS was placed on the list in May, 2020 for being "complicit in human rights violations and abuses committed in China’s campaign of repression, mass arbitrary detention, forced labor and high-technology surveillance against Uighurs, ethnic Kazakhs, and other members of Muslim minority groups in the Xinjiang Uighur Autonomous Region." The delisting was the product of a horse trade between the Justice Department (DEA), Homeland Security (ICE) and Beijing to obtain cooperation in stemming the flow of Fentanyl precursors chemicals from China.
Ms. Kendler was candid about why a notorious keystone in China's police state was given a pass: "It became clear to us that including IFS on the Commerce departments entity list was inhibiting the counter narcotics action that we thought was necessary."
In response to continued questioning, Mr. Axelrod pulled no punches: "Look, I think it's fair to say that there are whenever there's a delisting decision, it's a variety of factors come into play. In some circumstances it can be more narrowly targeted to the particular entity and whether the particular entity has changed its behavior In other circumstances, such as this one, the delisting decision can rely less on the specific entity that was delisted and more on other factors that also need to be taken into account...
"100,000 people are dying a year from fentanyl. I was a drug prosecutor in Miami, and I prosecuted the Cali cartel. At its height, the Cali cartel was sending more cocaine into this country than anywhere anyone else ever in history. But cocaine wasn't killing people the way Fentanyl is. We have to do everything in our power, use all our tools to help save American lives. This was a decision that that we believe will help do that, and that's why it was done.
"The issue here was that the listing of IFS was a consistent impediment to getting agreement from the Chinese to take specific actions to help with the fentanyl crisis, to help make sure that precursor chemicals weren't being sent from China."
In response to Rep. Tim Burchett (R-TN) Ms. Kendler downplayed the industry impact of the Bureau's 90 day "pause" in firearms exports:
"Congressman, our pause on firearms licensing applies only to commercial entities outside of our close partner countries, including Israel and Ukraine. That temporary pause, which we're halfway through at this point, is based on national security and foreign policy considerations. During this pause, we are using the time to figure out how best we can align our policy with our national security priorities.
"We're looking at this from national security and foreign policy angle. I would particularly point to our authorizing statute ECRA which calls that we look at regional stability issues and and particularly in the Western Hemisphere we we have gun violence issues that lead to regional instability. The during the pause we are very much consulting with stakeholders.
"NATO license applications are still being processed at the frankly that's about 75% by value of our license applications that we are continuing to process.
Rep. Andy Kim (D-NJ) asked what impact the Republican proposed 40% cuts to the Department of Commerce budgetwould have on BIS's work.
"Look, a cut to our budget would directly impact our national security work. It will affect our ability to aggressively enforce the expanding controls that have been put in place on Russia and and China. The Ukraine supplemental that you all were kind enough to pass gave us new resources that were added to our base in fiscal year 23, including fourteen new special agents and ten new intelligence analysts and support personnel.
"If we were to go back to our fiscal year 22 levels, it would cut 10% of our agents at a time when the need for more agents has never been higher. So I would, I would urge the committee not to not to cut us. If anything, we can always do more with more," Ms. Kendler said.
Ranking member Jason Crow (D-CO) asked what the Bureau would do with more resources. "Our our mission is harder and more complex given the evolving technology space," replied Ms. Kendler.
"I think I'd start with the the office of international policy and building up technical analysis of the emerging technologies... We put more resources into the licensing so that we can provide a faster response in reviewing license applications while committing the same efforts to protecting national security and foreign policy interests.
"We would beef up the resources we relied upon for open source information in foreign languages...it would enable us to look at what other countries, adversaries are publishing in their own materials about their goals, where they're spending their sovereign wealth, how they are investing in technologies in a way that may not be clear if you just follow US sources or or English language sources. It would also enable us to develop controls more carefully in collaboration with international partners and allies."
Mr. Axelrod too had a ready ask: "For us, three things:
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