[Federal Register: December 8, 1995 (Volume 60, Number 236)]
[Presidential Documents]
[Page 62981-62985]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

                        Presidential Documents

___________________________________________________________________

Title 3--
The President

[[Page 62981]]

                Executive Order 12981 of December 5, 1995


                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,

[[Page 62982]]
                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 informa

[[Page 62983]]
                tion 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 representa

[[Page 62984]]
                tives 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.

[[Page 62985]]

                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.

                    (Presidential Sig.)<Clinton1><Clinton2>

                THE WHITE HOUSE,

                    December 5, 1995.

[FR Doc. 95-30106
Filed 12-6-95; 2:31 pm]
Billing code 3195-01-P

________________________________________________________________________

See amendment by Executive Order 13020 October 12, 1996, 60 FR 62981:

http://jya.com/eo13020.txt


