DATE: 12-06-1995
THE WHITE HOUSE
Office of the Press Secretary
| For
Immediate Release |
December
6, 1995 |
EXECUTIVE ORDER 12981
ADMINISTRATION OF EXPORT CONTROLS
By the authority vested in me as President by the Constitution
and the laws of the United States of America, including but not
limited to the International Emergency Economic Powers Act (50
U.S.C. 1701 et. seq.) ("the Act"), and in order to take
additional steps with respect to the national emergency described
and declared in Executive Order No. 12924 of August 19, 1994, and
continued on August 15, 1995, I, WILLIAM J. CLINTON, President of
the United States of America, find that it is necessary for the
procedures set forth below to apply to export license applications
submitted under the Act and the Export Administration Regulations
(15 C.F.R. Part 730 et. seq.) ("the Regulations") or
under any renewal of, or successor to, the Export Administration
Act of 1979, as amended (50 U.S.C. App. 2401 et. seq.) ("the
Export Administration Act"), and the Regulations.
Accordingly, it is hereby ordered as follows:
Section 1. License Review. To the extent permitted by law and
consistent with Executive Order No. 12924 of August 19, 1994, the
power, authority, and discretion conferred upon the Secretary of
Commerce ("the Secretary") under the Export
Administration Act to require, review, and make final
determinations with regard to export licenses, documentation, and
other forms of information submitted to the Department of Commerce
pursuant to the Act and the Regulations or under any renewal of,
or successor to, the Export Administration Act and the
Regulations, with the power of successive redelegation, shall
continue. The Departments of State, Defense, and Energy, and the
Arms Control and Disarmament Agency each shall have the authority
to review any export license application submitted to the
Department of Commerce pursuant to the Act and the Regulations or
under any renewal of, or successor to, the Export Administration
Act and the Regulations. The Secretary may refer license
applications to other United States Government departments or
agencies for review as appropriate. In the event that a department
or agency determines that certain types of applications need not
be referred to it, such department or agency shall notify the
Department of Commerce as to the specific types of such
applications that it does not wish to review. All departments or
agencies shall promptly respond, on a case-by-case basis, to
requests from other departments or agencies for historical
information relating to past license applications.
Sec. 2. Determinations. (a) All license applications submitted
under the Act and the Regulations or any renewal of, or successor
to, the Export Administration Act and the Regulations, shall be
resolved or referred to the President no later than 90 calendar
days after registration of the completed license application.
(b) The following actions related to processing a license
application submitted under the Act and the Regulations or any
renewal of, or successor to, the Export Administration Act and the
Regulations shall not be counted in calculating the time periods
prescribed in this order:
(1) Agreement of the Applicant. Delays upon which the Secretary
and the applicant mutually agree.
(2) Prelicense Checks. Prelicense checks through government
channels that may be required to establish the identity and
reliability of the recipient of items controlled under the Act and
the Regulations or any renewal of, or successor to, the Export
Administration Act and the Regulations, provided that:
(A) the need for such prelicense check is established by the
Secretary, or by another department or agency if the request for
prelicense check is made by such department or agency;
(B) the Secretary requests the prelicense check within 5 days
of the determination that it is necessary; and
(C) the Secretary completes the analysis of the result of the
prelicense check within 5 days.
(3) Requests for Government-To-Government Assurances. Requests
for government-to-government assurances of suitable end-use of
items approved for export under the Act and the Regulations or any
renewal of, or successor to, the Export Administration Act and the
Regulations, when failure to obtain such assurances would result
in rejection of the application, provided that:
(A) the request for such assurances is sent to the Secretary of
State within 5 days of the determination that the assurances are
required;
(B) the Secretary of State initiates the request of the
relevant government within 10 days thereafter; and
(C) the license is issued within 5 days of the Secretary's
receipt of the requested assurances. Whenever such prelicense
checks and assurances are not requested within the time periods
set forth above, they must be accomplished within the time periods
established by this section.
(4) Multilateral Reviews. Multilateral review of a license
application as provided for under the Act and the Regulations or
any renewal of, or successor to, the Export Administration Act and
the Regulations, as long as multilateral review is required by the
relevant multilateral regime.
(5) Consultations. Consultation with other governments, if such
consultation is provided for by a relevant multilateral regime or
bilateral arrangement as a precondition for approving a license.
Sec. 3. Initial Processing. Within 9 days of registration of
any license application, the Secretary shall, as appropriate:
(a) request additional information from the applicant. The time
required for the applicant to supply the additional information
shall not be counted in calculating the time periods prescribed in
this section.
(b) refer the application and pertinent information to agencies
or departments as stipulated in section 1 of this order, and
forward to the agencies any relevant information submitted by the
applicant that could not be reduced to electronic form.
(c) assure that the stated classification on the application is
correct; return the application if a license is not required; and,
if referral to other departments or agencies is not required,
grant the application or notify the applicant of the Secretary's
intention to deny the application.
Sec. 4. Department or Agency Review. (a) Each reviewing
department or agency shall specify to the Secretary, within 10
days of receipt of a referral as specified in subsection 3(b), any
information not in the application that would be required to make
a determination, and the Secretary shall promptly request such
information from the applicant. If, after receipt of the
information so specified or other new information, a reviewing
department or agency concludes that additional information would
be required to make a determination, it shall promptly specify
that additional information to the Secretary, and the Secretary
shall promptly request such information from the applicant. The
time that may elapse between the date the information is requested
by the reviewing department or agency and the date the information
is received by the reviewing department or agency shall not be
counted in calculating the time periods prescribed in this order.
Such information specified by reviewing departments or agencies is
in addition to any information that may be requested by the
Department of Commerce on its own initiative during the first 9
days after registration of an application.
(b) Within 30 days of receipt of a referral and all required
information, a department or agency shall provide the Secretary
with a recommendation either to approve or deny the license
application. As appropriate, such recommendation may be with the
benefit of consultation and discussions in interagency groups
established to provide expertise and coordinate interagency
consultation. A recommendation that the Secretary deny a license
shall include a statement of the reasons for such recommendation
that are consistent with the provisions of the Act and the
Regulations or any renewal of, or successor to, the Export
Administration Act and the Regulations and shall cite both the
statutory and the regulatory bases for the recommendation to deny.
A department or agency that fails to provide a recommendation
within 30 days with a statement of reasons and the statutory and
regulatory bases shall be deemed to have no objection to the
decision of the Secretary.
Sec. 5. Interagency Dispute Resolution. (a) Committees. (1)(A)
Export Administration Review Board. The Export Administration
Review Board ("the Board"), which was established by
Executive Order No. 11533 of June 4, 1970, and continued in
Executive Order No. 12002 of July 7, 1977, is hereby continued.
The Board shall have as its members, the Secretary, who shall be
Chair of the Board, the Secretary of State, the Secretary of
Defense, the Secretary of Energy, and the Director of the Arms
Control and Disarmament Agency. The Chairman of the Joint Chiefs
of Staff and the Director of Central Intelligence shall be
nonvoting members of the Board. No alternate Board members shall
be designated, but the acting head or deputy head of any member
department or agency may serve in lieu of the head of the
concerned department or agency. The Board may invite the heads of
other United States Government departments or agencies, other than
the departments or agencies represented by the Board members, to
participate in the activities of the Board when matters of
interest to such departments or agencies are under consideration.
(B) The Secretary may, from time to time, refer to the Board
such particular export license matters, involving questions of
national security or other major policy issues, as the Secretary
shall select. The Secretary shall also refer to the Board any
other such export license matter, upon the request of any other
member of the Board or the head of any other United States
Government department or agency having any interest in such
matter. The Board shall consider the matters so referred to it,
giving due consideration to the foreign policy of the United
States, the national security, the domestic economy, and concerns
about the proliferation of armaments, weapons of mass destruction,
missile delivery systems, and advanced conventional weapons and
shall make recommendations thereon to the Secretary.
(2) Advisory Committee on Export Policy. An Advisory Committee
on Export Policy ("ACEP") is established and shall have
as its members the Assistant Secretary of Commerce for Export
Administration, who shall be Chair of the ACEP, and Assistant
Secretary-level representatives of the Departments of State,
Defense, and Energy, and the Arms Control and Disarmament Agency.
Appropriate representatives of the Joint Chiefs of Staff and of
the Nonproliferation Center of the Central Intelligence Agency
shall be nonvoting members of the ACEP. Representatives of the
departments or agencies shall be the appropriate Assistant
Secretary or equivalent (or appropriate acting Assistant Secretary
or equivalent in lieu of the Assistant Secretary or equivalent) of
the concerned department or agency, or appropriate Deputy
Assistant Secretary or equivalent (or the appropriate acting
Deputy Assistant Secretary or equivalent in lieu of the Deputy
Assistant Secretary or equivalent) of the concerned department or
agency. Regardless of the department or agency representative's
rank, such representative shall speak and vote at the ACEP on
behalf of the appropriate Assistant Secretary or equivalent of
such department or agency. The ACEP may invite Assistant
Secretary-level representatives of other United States Government
departments or agencies, other than the departments and agencies
represented by the ACEP members, to participate in the activities
of the ACEP when matters of interest to such departments or
agencies are under consideration.
(3)(A) Operating Committee. An Operating Committee ("OC")
of the ACEP is established. The Secretary shall appoint its Chair,
who shall also serve as Executive Secretary of the ACEP. Its other
members shall be representatives of appropriate agencies in the
Departments of Commerce, State, Defense, and Energy, and the Arms
Control and Disarmament Agency. The appropriate representatives of
the Joint Chiefs of Staff and the Nonproliferation Center of the
Central Intelligence Agency shall be nonvoting members of the OC.
The OC may invite representatives of other United States
Government departments or agencies, other than the departments and
agencies represented by the OC members, to participate in the
activities of the OC when matters of interest to such departments
or agencies are under consideration.
(B) The OC shall review all license applications on which the
reviewing departments and agencies are not in agreement. The Chair
of the OC shall consider the recommendations of the reviewing
departments and agencies and inform them of his or her decision on
any such matters within 14 days after the deadline for receiving
department and agency recommendations. As described below, any
reviewing department or agency may appeal the decision of the
Chair of the OC to the Chair of the ACEP. In the absence of a
timely appeal, the Chair's decision will be final.
(b) Resolution Procedures. (1) If any department or agency
disagrees with a licensing determination of the Department of
Commerce made through the OC, it may appeal the matter to the ACEP
for resolution. A department or agency must appeal a matter within
5 days of such a decision. Appeals must be in writing from an
official appointed by the President by and with the advice and
consent of the Senate, or an officer properly acting in such
capacity, and must cite both the statutory and the regulatory
bases for the appeal. The ACEP shall review all departments' and
agencies' information and recommendations, and the Chair of the
ACEP shall inform the reviewing departments and agencies of the
majority vote decision of the ACEP within 11 days from the date of
receiving notice of the appeal. Within 5 days of the majority vote
decision, any dissenting department or agency may appeal the
decision by submitting a letter from the head of the department or
agency to the Secretary in his or her capacity as the Chair of the
Board. Such letter shall cite both the statutory and the
regulatory bases for the appeal. Within the same period of time,
the Secretary may call a meeting on his or her own initiative to
consider a license application. In the absence of a timely appeal,
the majority vote decision of the ACEP shall be final.
(2) The Board shall review all departments' and agencies'
information and recommendations, and such other export control
matters as may be appropriate. The Secretary shall inform the
reviewing departments and agencies of the majority vote of the
Board within 11 days from the date of receiving notice of appeal.
Within 5 days of the decision, any department or agency dissenting
from the majority vote decision of the Board may appeal the
decision by submitting a letter from the head of the dissenting
department or agency to the President. In the absence of a timely
appeal, the majority vote decision of the Board shall be final.
Sec. 6. The license review process in this order shall take
effect beginning with those license applications registered by the
Secretary 60 days after the date of this order and shall continue
in effect to the extent not inconsistent with any renewal of the
Export Administration Act, or with any successor to that Act.
Sec. 7. Judicial Review. This order is intended only to improve
the internal management of the executive branch and is not
intended to, and does not, create any rights to administrative or
judicial review, or any other right or benefit or trust
responsibility, substantive or procedural, enforceable by a party
against the United States, its agencies or instrumentalities, its
officers or employees, or any other person.
WILLIAM J. CLINTON
THE WHITE HOUSE,
December 5, 1995.
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