    [Federal Register: November 19, 1996 (Volume 61, Number 224)]
    [Presidential Documents]
    [Page 58767-58768]
    From the Federal Register Online via GPO Access [wais.access.gpo.gov]

                            Presidential Documents

    ___________________________________________________________________

    Title 3--
    The President

    [[Page 58767]]

                    Executive Order 13026 of November 15, 1996

                    Administration of Export Controls on Encryption
                    Products

                    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.),
                    and in order to take additional steps with respect to
                    the national emergency described and declared in
                    Executive Order 12924 of August 19, 1994, and continued
                    on August 15, 1995, and on August 14, 1996, I, WILLIAM
                    J. CLINTON, President of the United States of America,
                    have decided that the provisions set forth below shall
                    apply to administration of the export control system
                    maintained by the Export Administration Regulations, 15
                    CFR Part 730 et seq. (``the EAR''). Accordingly, it is
                    hereby ordered as follows:

                    Section 1. Treatment of Encryption Products. In order
                    to provide for appropriate controls on the export and
                    foreign dissemination of encryption products, export
                    controls of encryption products that are or would be,
                    on this date, designated as defense articles in
                    Category XIII of the United States Munitions List and
                    regulated by the United States Department of State
                    pursuant to the Arms Export Control Act, 22 U.S.C. 2778
                    et seq. (``the AECA''), but that subsequently are
                    placed on the Commerce Control List in the EAR, shall
                    be subject to the following conditions: (a) I have
                    determined that the export of encryption products
                    described in this section could harm national security
                    and foreign policy interests even where comparable
                    products are or appear to be available from sources
                    outside the United States, and that facts and questions
                    concerning the foreign availability of such encryption
                    products cannot be made subject to public disclosure or
                    judicial review without revealing or implicating
                    classified information that could harm United States
                    national security and foreign policy interests.
                    Accordingly, sections 4(c) and 6(h)(2)-(4) of the
                    Export Administration Act of 1979 (``the EAA''), 50
                    U.S.C. App. 2403(c) and 2405(h)(2)-(4), as amended and
                    as continued in effect by Executive Order 12924 of
                    August 19, 1994, and by notices of August 15, 1995, and
                    August 14, 1996, all other analogous provisions of the
                    EAA relating to foreign availability, and the
                    regulations in the EAR relating to such EAA provisions,
                    shall not be applicable with respect to export controls
                    on such encryption products. Notwithstanding this, the
                    Secretary of Commerce (``Secretary'') may, in his
                    discretion, consider the foreign availability of
                    comparable encryption products in determining whether
                    to issue a license in a particular case or to remove
                    controls on particular products, but is not required to
                    issue licenses in particular cases or to remove
                    controls on particular products based on such
                    consideration;

                        (b) Executive Order 12981, as amended by Executive
                    Order 13020 of October 12, 1996, is further amended as
                    follows:
                        (1) A new section 6 is added to read as follows:
                    ``Sec. 6.  Encryption Products.  In conducting the
                    license review described in section 1 above, with
                    respect to export controls of encryption products that
                    are or would be, on November 15, 1996, designated as
                    defense articles in Category XIII of the United States
                    Munitions List and regulated by the United States
                    Department of State pursuant to the Arms Export Control
                    Act, 22 U.S.C. 2778 et seq., but that subsequently are
                    placed on the Commerce Control List in the Export
                    Administration Regulations, the Departments of State,
                    Defense, Energy, and Justice and the Arms Control and
                    Disarmament Agency

    [[Page 58768]]

                    shall have the opportunity to review any export license
                    application submitted to the Department of Commerce.
                    The Department of Justice shall, with respect to such
                    encryption products, be a voting member of the Export
                    Administration Review Board described in section
                    5(a)(1) of this order and of the Advisory Committee on
                    Export Policy described in section 5(a)(2) of this
                    order. The Department of Justice shall be a full member
                    of the Operating Committee of the ACEP described in
                    section 5(a)(3) of this order, and of any other
                    committees and consultation groups reviewing export
                    controls with respect to such encryption products.''
                        (2) Sections 6 and 7 of Executive Order 12981 of
                    December 5, 1995, are renumbered as new sections 7 and
                    8, respectively.
                        (c) Because the export of encryption software, like
                    the export of other encryption products described in
                    this section, must be controlled because of such
                    software's functional capacity, rather than because of
                    any possible informational value of such software, such
                    software shall not be considered or treated as
                    ``technology,'' as that term is defined in section 16
                    of the EAA (50 U.S.C. App. 2415) and in the EAR (61
                    Fed. Reg. 12714, March 25, 1996);
                        (d) With respect to encryption products described
                    in this section, the Secretary shall take such actions,
                    including the promulgation of rules, regulations, and
                    amendments thereto, as may be necessary to control the
                    export of assistance (including training) to foreign
                    persons in the same manner and to the same extent as
                    the export of such assistance is controlled under the
                    AECA, as amended by section 151 of Public Law 104-164;
                        (e) Appropriate controls on the export and foreign
                    dissemination of encryption products described in this
                    section may include, but are not limited to, measures
                    that promote the use of strong encryption products and
                    the development of a key recovery management
                    infrastructure; and
                        (f) Regulation of encryption products described in
                    this section shall be subject to such further
                    conditions as the President may direct.

                    Sec. 2. Effective Date. The provisions described in
                    section 1 shall take effect as soon as any encryption
                    products described in section 1 are placed on the
                    Commerce Control List in the EAR.

                    Sec. 3. Judicial Review. This order is intended only to
                    improve the internal management of the executive branch
                    and to ensure the implementation of appropriate
                    controls on the export and foreign dissemination of
                    encryption products. It 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.

                        (Presidential Sig.)<Clinton1><Clinton2>

                    THE WHITE HOUSE,

                         November 15, 1996.

    [FR Doc. 96-29692
    Filed 11-18-96; 8:45 am]
    Billing code 3195-01-P